PUNJAB UNIVERSITY LAW COLLEGE, LAHORE

SEND-UP EXAMINATION SYLLABUS 2018

PAPER 1 ISLAMIC JURISPREDENCE
1. Muslim Schools of Thought
2. Quran as Source of Islamic Law

PAPER 2 ENGLISH JURISPRUDENCE

1. Four definitions of Jurisprudence
2. Four definitions of Law
3. Kinds of Law
4. Imperative Law Theory and Sovereignty of State

PAPER 3 CONSTITUTIONAL LAW I

1. Sources of American Constitution
2. Salient Features of American Constitution
3. Sources of British Constitution
4. Salient Features of British Constitution

PAPER 4 LAW OF CONTRACT

1. Valid Contract
2. Consideration in Contract
3. Void Contract
4. Discharge of Contract
5. Remedies in Contract
6. Sales of Goods Contract. Sales Vs Agreement to Sell
7. Unpaid Seller of Goods and his Rights

PAPER 5 LAW OF TORT & EASEMENT

PAPER 6 CRIMINAL LAW I
1. Abetment and Criminal Conspiracy
2. General Exceptions
3. Right to Private Defence

PAPER 7 LANGUAGE SKILLS (ENGLISH-ARABIC)

1. Translation (4 poems in lesson 19-A)
2. Arrange words to make sentences (lessons 1-8)
3. Fill in the blanks (lessons 1-8)
4. Use words in sentences (lessons 1-8)
 PAPER 1 ISLAMIC JURISPREDENCE
1. Muslim Schools of Thought

MUSLIM SCHOOL OF THOUGHT

The schools of Islamic Law are not seets: they are systems of interpretation. Each school has
its own independent set of principles, which cannot be mixed up with the principles of other
schools without causing inner contradictions and analytically inconsistency. The set of
principles adopted by each school is followed by the jurists within the school. It is obvious that
the use of one set of principles my lead to a different legal opinion of the derived law. For
example, it is an established principle within the Hanafi school that the legal opinion of a
companion of the Prophet, especially a jurist companion, sets a binding precedent for the later
jurists, it has to be followed. The Shafi’I school does not follow this principle.

The Hanafi School

Kufah, a city in Iraq, gradually turned into a center of Fiqh and learning. The reason for its
being so is traced to the decision of Umar (R), who sent ‘Abd Allab ibn Masud (R) (D, 32 A.H) as
a teacher and Qadi for this area. This learned companion trained a large number of jurists,
who in turn produced students many of whom attained great fame. Among these jurists were
Alqamah al-Nakha’ I,has nephew Ibrahim al-Nakah’I, Qadi Shurayh, and Hammad ibn Abu
Suleiman.
Founder
The founder of the Hanafi School was Abu Hanifah Na’man ibn Thabit ibn Zutah, possibly of
afghan origin, Imam Abou Hanifah was born in Kufah in the year 80 A.H.(699 A.D.) and died
in 150 A.H. (767 A.D.). He is also called Iman Azam or the Great Iman. He began his early
education in scholastic (Kalam) and later developed an interest for jurisprudence under the
tutorship of his Sheikh, Hammad ibn Abu Suleiman (d.120 A.H).
He was textile merchant by profession and its is said that due to this reason his Fiqh reflects
his practical approach to legal problems. Abu Hanifah was later given the title of the leader of
the school of Ahl al-Ra’y. He is reported to have met some companions as well,
foremost among-st them is Anas ibn Malik.
Jurists of the School
Out of the pupils of Abu Hanifah, four are famous; they were: Abu Yusuf ya’qub Ibrahim al-
Ansari (133-182 A.H) , Zufar ibn Hudhayl ibn Qaiys (110-158 A.H), and Hasan ibn Ziyad al-Lului.
Through these disciples, the fame of the Hanafi School spread far and wide. Abu Yusuf was
appoint judge in Bagdad and later became the Chief Qadi with authority to appoint judges all
over the kingdom. He thus had the opportunity to propagate the school of the great Imam.
Early Works
Muhammad ibn al-Hasan al-Shaybani, who must have been 18 years old when Abu Hanifah
Died, takes the credit for recording not only the first books of the Hanafi School, but also those
of the entire Islamic legal system. The books written by him were of two types: the first were
called zahir al-riwayah or books of the primary issues, while the second were called al-nawadir
or unusual cases.
In addition to the above, he wrote Kitab al-Hujjah , ala Ahl al-Madinah, a book on the use of
traditions, and another book on traditions called al-Athar. His version of Malik’s Muwatta is
also considered highly reliable. Abu Yusuf also wrote a book on traditions called al-Athar, and
his Kitab al-Kharj is very well known.
The above books form the foundation of Hanafi Fiqh, in fact, most of the books of the other
schools are a response to what is recorded in these books. Al-Mudawwanah al-Kubra of the
Maliki school complied by al-Sahnun is response to the rulings given in the above books. Much
of al-Shafi is work is also in response to these works.
Influence
The Hanafi school was predominant in Iraq during the Abbasid Caliphate since it was preferred
officially. It was also the official school in the Ottoman State and in the Mughal Kingdom in
India. Its adherents constitute more than one-third of the Muslims of the world and its
followers are in a majority in Pakistan, India, Bangladesh, Afghanistan, Turkey, Iraq, Syria, and
the newly independent states of Central Asia.

The Hanafi School and legal theory

Hanafi legal theory revolves around the use of general principles. The first task for the Hanafi
jurist, when he is faced with a new case, is to see whether this case can be accommodated
under a general principle. If the case is covered directly by principle the jurist finds no difficulty
in assigning to it directly by a principle, the jurist finds no difficulty in assigning to it the hukm
of the governing principle. If the case does not fall under one principle, the jurists would try to
accommodate it under another principle. A principle that governs a case may itself be a sub-
principle of a wide principle, or even be an exemption form it or a corollary.
Abu Hanifah, however, is reported to have said: “ this knowledge of ours is an opinion; it is the
best we have been able to achieve. He who is able to arrive at a different conclusion is entitled
to his opinion as we are entitled to our own”. Explaining the modes of Ijtihad adopted by him,
he said: “If I do not find my answers in the Book of Allah or in the traditions of the Prophet
(P.B.U.H), I seek the views of the Prophet’s companions, from whose opinion I do not deviate.
But when it comes to Ibrahim, al-Shabi, Ibn Sirin, al-Iasan, ‘Ata’, and Sa’id ibn Jubayr, well,
they were persons who resorted to independent interpretation and I will do likewise.”
The Principles according Abu Hanifah are: proof by the Quran and by the Sunnah, Ijma, and
the opinion of a companion. He does not mention qiyas (analogy) and Istihsan (Jurristic
preference) as these are principles of interpretation rather than true sources of Islamic Law.
Istihsan is the preference of a general principle over analogy. Al-Shaybani, however, uses
analogy and Istihsan in his book and at tributes it to his tech er as well.
It has been mentioned by Ibn Khaldun in the Muqaddimah that Abu Hanifah acted upon ra’y
and did not accept the majority of the traditions. He accepted only 17 traditions, says Ibn
Khaldun, this view is not correct and is based on vicious propaganda against the Hanafi School.
Anyone who studies the Fiqh of the Hanafi school will realize that abu Hanafi accords the
Sunnah its proper status, like the other fenders of schools, Further, how can a jurist who
considers the Sunnah as binding or reject traditions without justification.
Abu Hanifah accpeted Qiyas (analogy) and acted upon it like the principles relating to qiyas
used by the Hanafi school, it becomes apparent that its scope is narrower when compared
with the methods of the other schools. This strictness is overcome by the principle of Istihsan.
Istihsan is nothing more than the preference of a stronger principle over strict analogy.
Istihsan is also used by the Maliki School, but it is rejected by the Shafi’is.

The Maliki School

The Maliki school emerged as the school of the people of Medina or the people of Hijas. In this
methods it owes its origin to ‘Abd Allah ibn ‘Umar ( and to ‘Umar ® himself according to some),
Zayd ibn Thabit, Ibn’ Abbas, ‘A’ishah, Sa’id ibn al-Musayyib and other companions (may Allah
be pleased them all).
The Imam of this school was Maliki, ibn Anas ibn Malik ibn Abi ‘Amir al-Asbahi. Malik was born
in Madinah in the year 93 A.H. (or 95 or 97). He lived all his life in Medina where he died in the
year 179 A.H. (795 C.E.). He received his early education form ‘Abd al-Rahman Haraz and
became a student of Rabi’ah ibn ‘Abd al-Rahman, known as Rabi’at al-Ra’y, at the age of 17
he started giving lessons in Fiqh and traditions. He him self says, “I began when seventy
Shaykhs ahas approved that I was qualified to do so.” He was universally acknowledged as a
Jurist. Al-Shafi’I is reported to have said of him: “After the Tabi’un, Maliki is God’s
authority among His creatures. If traditions carry the Malik’s authority hold on to them.”
The authority of Malik as traditionalist is undisputed. He studied traditions under Nafi, the
client of Ibn’Umar, under al-Zahri, Abu al-Zinad, and Yaha ibn Nafi from ibn’Umar, and then
Malik form al-Zuhri form Salim from his father. This is sufficient proof of the authority that
Malik enjoyed as a traditionist.
Malik is the author of the well known book al-Muwatta, which is at once a book of traditions
and Fiqh. It is said that he wrote this book over a period of 40 years. Al-Shafi’i said of this text:
“ No book on earth, after the Book of Allah, is more accurate than the book of Malik.” (It
should be noted that the sound (Sahih) compilations were complied much later). Al-Muwatta
was transmitted in several versions, two of which have come down to us. The first is the version
of Muhammad ibn al-Hasan al-Shaybani (printed in India), while the second was that of Yahya
al-Laythi (d.234), which has been published in Egypt and commented upon by al-Zyraqani, al-
Suyuti and others.
The pupils of Malik include Muhammad ibn al-Hasan of the Hanafi school and Muhammad ibn
Idris al-Shafi’i the founde of the Shafi’i school. Those belonging to the Maliki school were:
Yahya al-Laythi, the narrator of al-Muwatta’, Adad ibn al-Furat al-Tunisi (d. 213 A.H.). Abd al-
Alam al-Tanhuki, also known its Adad ibn al-Furat al-Tunisi (d. 213 aA.H.). Abd al-Alam al-
Tanhuki, also know as Sahnun from Qayrawan (d.213 A.H.) Abd al-Rahman ibn al-Qasim (d.
191 A.H), Ashhab ibn Abd al-Qasim Qaysi (d.204 A.H.) and Abd Allah ibn Abd al-Hakam (d.214
A.H.).
Among the later jurists of the school, who attained fame were: Abu al-Walid al-Baji, Ibn Rushd
(the grandfather), Ibn Rushd (the grandson, author of Bidayat al-Mujtahid), Ibn al-Arabi, Sidi
Khalil, and al-Khirashi.
The earliest major work of the school is al-Mudawwanah al-Kubra. Ibn al-Qasim, who was the
student of Malik for 20 years, issued rulings on cases already decided by the jurists of Iraq
(Primarily the Hanafis) when these were presented to him by Asad ibn al-Furat. The decisions
were rendered in the light of Malik’s opinion as well as Ibn al-Qasim’s own. The decisions were
recorded by Sahnun. The work is voluminous and makes very interesting reading. As Sahnun
died in 240 A.H., the work must have been complied a few years earlier (say around 230 A.H.).
Other works are al-Mukhtasar by Sadi Khalil. Many commentaries have been written on this
work. Ibn Rushd’s Bidayat al-Mujtahid is well known. It is unique because of its comparative
approach, and is used for instructional purposes in many institutions.

Maliki School and Legal Theory

Malik’s name and method are usually associated with the Ahl al-Hadith, because he was the
first traditionalist. Malik’s statuses as a traditionalist is acknowledged by all, but he was an
equally great jurist. This was acknowledged by Abu Hanifah, who on visiting him said: “He
truly is a Faqih.” When Malik’s opinions and those of his school are examined in some detail,
it becomes obvious that the preferred method was analytically based on the use of general
principles. In fact, the methodology of this school is closer to that of the Hanafi school than to
any school of the traditionalists. Both accept Istihsan and the opinion of a companion. The
Maliki school accepts the principles of maslahah and sadd al-dhari’ah which are nothing more
than the use of general principles.
Malik did not lay down his principles separately in a compiled form. His students and later
jurists of the school derived these principle from Malik’s Fiqh and compiled them. These jurists
maintain that the sources of Fiqh according to Malik are: the Quran, the Sunnah, Ijam, Qiyas
(analogy), practice of people of Madina, opinion of a companion, Istihsan, maslahah
mursalah, and sadd al-dhariah (blocking the lawful means to an unlawful end). The modes of
Ijtihad adopted by Imam Malik had the following distinctive features.
1. Practice of the people of Madinah preferred over Qiyas
2. Maslahah Mursalah : Maslahah mursalah is defined by jurists as that interest
which has neither been expressly confirmed by the Lawgiver nor has it been rejected.
In other words, it is a principle derived by the jurist after seeking support form the
purposes of law.
3. Opinions of the companions: Malik holds the view that opinions of the
companions constitute a valid proof for purposes of the ahkam and should be preferred
over Qiyas. This hold true when there is no tradition from the Prophet on the case.
4. Sunnah: Malik lays down that individual narrations should not be contrary to
the practice of the people of Madinah. If an individual narration is contradicting such
practice then it is not a legally valid proof.
 5. Istihsan: Malik has upheld the principle of Istihsan is some of his decisions. The
Maliki jurists have explained the meaning of this principle as practiced by Malik.
The Maliki school was quite influential in Muslim Spain. Its followers can be found
today in North Africa, Central and West Africa and Eastern Arabia. Modern jurists place
a high value on his doctrine of Maslahah.

The Shafi’i School

The founder of this school was Abu Abd Allah Muhammad ibn Idris Ibn al-Abbas ibn Uthman
ibn al-Shafi’i al-Hashimi al-Matlabi. He belonged to the Quraysh tribe and was born in Ghaza
in the year 150 A.H. (767 A.D.) and died in Egypt in the year 204 A.H. (819 A.H.).
When he was two year old his father died and his mother took him Makkah. He memorized
the Quran at the age of 7 years. He went to the desert to live with the tribe of Hudhayl where
he learnt of Makkah, Muslim ibn Khalid al-Zanji. It is said that al-Zanji allowed him to give
legal opinions when he was only 15 years old. Al-Shafi’s traveled thought out his life from one
place to another. At the age of 30 he was offered a post by the Govern of Yemen. As a result
of some intrigue and subsequent accusation he was deported form Yemen and was sent to
Baghdad in the year 184 A.H. to appear before the Caliph. It is said that Muhammad al-
Shaybani played an effective role in his defense and he was released. He stayed with al-
Shaybani and acquired knowledge from him. He refers, in the Kitab al-Umm, to the discussions
that took place. He has earlier been the student of Malik and studied al-Muwatta under him.
Al-Shafi’i left for Makkah in the years and returned to Hijaz. In 198 A.H. he paid his third visit
to Iraq and after a few months left for Egypt. It is said that he wrote his books al-Risalah, Kitab
alImm, and Ikhtilaf al-Hadith in Egypt. If this is true, then the must have written all this in the
last six years of his life, which apperars to be an incredible task.
His book at-Risalah is considered to be the first systematic work on usul. His book al-Umm,
however, is considered to be more important. The book falls into seven volumes and has been
recorded in scientific and dialectical form by his pupil, al-Rabi, ibn Sulayman. There has been
a controversy around the real author of this book in recent times on the basis of what some
earlier scholars like al-Ghazali and others have said that the book was actually written by al-
Buwayti a student of al-Shafi’i. It is maintained that after al-Buwayti had written it Rabi ibn
Sulayman expanded and rearranged it. Dr. Zaki Mubarak endorsed this view in 1934. This,
however does not undermine the value of the book which had no parallel in the works of those
days as far as its method of exposition is concerned.
The prominent jurists of the Shafi’i school are: Islam’il ibn Yahya al-Muzani, the author of al-
Mukhtasar, Yusuf ibn Yaha al-Buwayti, Rabi ibn Sulayman and Ahmad ibn Hanbal. These were
his pupils and in larter ttimes the Shafi’i school has produced outstanding personalities like al-
Shirazi, al-Juwayni, al-ghazali, al-Razi, al-Nawawi and many others.
There is, however, a big gap between the works of al-Shafi’i and the later well know works of
the school. In fact, the gap extends over two or more centuries. The fully developed school
upheld certain doctrines that were not upheld by the founder. Perhaps, the doctrines were
being refined and tested during this large gap of two and a half centuries. It is possible that
there were a large number of works in between, but these are not extant.

Shafi’i School and Legal Theory

The method of interpretation adopted by al-Shafi’i was directed against the use of
general principles. The reason appears to the desire to stay as close to revelation as possible,
ie, wahi in both its meanings. Thus, a basic rule he made was: “If the chain of a tradition is
complete and sound, it must be followed”.This rule, he insisted, should be followed irrespective
of general principles. Accordingly, most of his other principles fo interpretation appear to be
designed against the strengthening of general principles.
Al-Shafi’i was the first jurist to write about the rules of literal construction and then construct
his Fiqh on them. These principles are available in his book al-Risalah and are visible in the
Kitab al-Umm. In this book he also discussed Qiyas al-ma’na, Ijma, and Istihsan, the major
emphasis, however , was on the Sunnah as a source of law. In a way, he is the leader of the
Ahl al-Hadith or those who are inclined towards applying the traditions literally once a sound
chain is established. He laid down conditions for the acceptance of the traditions on the basis
of which he is sometimes given the title of the helper of the Sunnah. He accepted the four
sources of law The Quran, the Sunnah, Ijma and Qiyas. Al-Shafi’i does not consider the opinion
of a companion as a valid principle nor does he attach weight to the practice of the people of
Madinah.
Al-Shafi’i attacked the principle of Istihsan used by the Hanafis as well as Malikis and
condemned it. A closer examination of his arguments, however, reveals that he did not identify
the exact nature of this principle as used by both Hanafis and Malikis, which is very much
within the ambit of the texts, and this is acknowledged by some Sahfi’i jurists like al-Ghazali.
The principle of Ijma is accepted by al-Shafi’i, but not exactly in a form laid down by the
classical definition. Al-Shafi’i does not mention maslahah mursalah in his principles. The jurists
of his school reject it outright, however, it is maintained by modern writers that al-Shafi’i uses
this principle and calls it Qiyas fial-qawa’id, but this opinion is no t supported by al-Shafiis
works, especially when his methodology was directed against general principles.

The Hanbali School

The founder of the school is Abu Abd Allah Ahmad ibn Hanbal ibn Asad Al-Shaybani al-
Baghadadi. He was born in the year 164 A.H. (780 A.D.) in Baghdad and died there in 241 A.H.
(855 A.D.). He visited Syria, Hijaz, Yemen, Kufah and Basrah for purposes of collecting
traditions. He was pupil of al-Shafi’i for some time. He complied a major work on traditions
entitled musnad al-Imam Ahmad, which contanis more than 40,000 traditions.
Among thejurists of this school me Muwaffaq ad-Din ibn Quadamah, the author of al-Mughni,
Shams al-Din ibn Qudamah al-Maqadisi, the author of al-Sharah al-Kabir, Taqiy al Din ibn
Taymiyah, author of the Fatawa and other works and Abu Abd Allah ibn Bakar al Zari’i better
known as Ibn Qayyim al-Jawziyah.

Hanbli School and Legal Theory

The approach of the Hanbali school is similar to that of the Sahafi’i school. In fact, this school
is more literalist than the Shafi’i school while al-Shafi’i was not inclined to accept mursal
traditions, the Hanbali school did and preferred them over general principles and on analogy
constructed on them.
The Hanbali school derives its literature form the later jurists who have laid down the
principles of their imam. Ibn Qayyim al-Jaqziyah stated that these principles are five:
1. The texts (Nus-us). The Quran and those traditions whose chains are complete
are to be preferred over any other kind of source whether textual or rational.
2. Opinion of a companion. These are of two kinds: First, an opinion of a
companion in which he has not been opposed by other, this is accepted. Second, when
the opinions over an issue are more than one. In such a case that which is closest ot
the texts is to be accepted.
3. The daif and Mursal Traditions. We have said that al-Shafii does not accept a
tradition the chain of which is cut up or there is a dafect in it, Ahmad ibn Hanbal does.
These traditions are not to be rejected totally, but are to be used for the establishing
 of the ahkam in order of strength. These traditions also are preferred by the Imam over
Qiyas.
4. Qiyas: Qiyas is the source of law as a last resort. When all the above sources
fail to reveal a hukm the jurist may then have recourse to Qiyas.
The Hanbali school existed for some time in Iran, before that country became Shah, and also
in Baghdad. The school then faced virtual extinction before it was rejuvenated by Ibn Taymiyah
and his pupil Ibn Qayyim al-Jawziyah in the seventh and eighth centuries. It came to life again
in the 18thcentury in Saudi Arabia at the hands of Muhammad ibn Abd al-Wahhab. In the time
of King Abd al-Aziz al-Sasd it was declared as the official school of the Kingdom. The follower
of this school, sometimes called Wahhabis, are found in central Saudi Arabia, and in Pakistan
and India as well. It is to be noted that the majority of the people in Saudi Arabia are Shafiis.
There are three other Sunni Schools, besides the for mentioned above, buty they became
extinct. These were the school of al-Alwzai the Zahiri school and the school of al-Tabari.

Conclusion
From the above discussion it is truth that the four school of thought plays a fundamental role
in contribution of Fiqh and codification and compilation of Islamic law. And all school of
thought rising the prestige and authority of the Holy Prophet and also tell the followers of
these school of thought that actual Islamic law is Quran, a complete code of life for Muslims.
2. Quran as Source of Islamic Law

QURAN IS FUNDAMENTAL SOURCE OF ISLAMIC LAW

There are three primary sources of Islamic law. Out of these primary sources, Quran is
considered as the first primary or fundamental source of Islamic Law. The Quran is the
revealed Book of God. The basic source of Islamic Law is divine revelation. This has been given
to us by the Prophet (Peace Be Upon Him) in two forms. One is the direct words of God (The
Quran), other is indirect words of God ( The Sunnah). These two forms of revelation are called
roots of Islamic Law. It is the only Book of God which has not been distorted as He Himself
undertook its safety.
Meaning
The term “Quran” is derived from the Arabic word “Qura’a”. The Term Quran is used in two
meanings.

(a) As participle (To Read), and

(b) As an Object ( a thing which is read).

Both these meanings technically are attributed to the Quran

Revelations
The Holy Quran was revealed approximately in twenty-three years according to needs of the
peoples, Eighty-sex (86) Surahs were revealed in Makkah, so that these Surahs were called
Makkahi and twenty-eight (28) Surahs were revealed in Medina, so that these Surahs were
called Madani. The first revelation comes to the Holy Prophet Muhammad (SAW) when he was
forty years of age.

Following verse of Surah “Al-Alaq” was revealed on him.

“Read in the name of the Lord, who create the man from a clot”.
Names of Quran
There are 55 alternative names of the Holy Quran such as;
(i) Al-Kitab;

(ii) Al-Furqan;

(iii) Al-Noor;

(iv) Al-Mobeen;
(v) Al-Hadith

Compilation of Quran
The Holy Quran was completely compiled in written form during the life time of Prophet (Peace
Be Upon Him).

Quranic References;
(i) “We are responsible for its compilation”. (75:17)

(ii) “Only the clean should touch it”. (56:79)

Salient features of Quran

(i) Unlimited

(ii) Comprehensive

(iii) Absolute

(iv) Unconditional

(v) Dynamic

(vi) Organic

(vii) Duty of Protection

Contents of the Holy Quran

Following are some contents of the Holy Quran

(a) Stories
Quran narrates the stories of the past prophet and people and the punishment inflicted on the
wicked in the past. For instance, the story of Hazrat Musa, Hazrat Abrahim, Hazrat Isa, Hazrat
Yousef and the people of the cave etc.

(b) Seen and Unseen

The Holy Quran lets us know about the seen and unseen, Allah, the Angels, the life after death,
Day of Judgement, Paradise and Hell and so forth.

(c) Create of universe

The Holy Quran gives account of the Heaven, earth and of man himself.

(d) Code of life

The Holy Quran a complete code of behaviour good, injections, and teachings in regards to
social, lawful, economic and political matters.

Ahkam in the Holy Quran

Two main categories of Hukm have been classified by the Muslim Jurists;

Hukam Taklifi
To create an obligation for commission or omission of an act.

Hukm Wadi
To Provide criterion for judging whether an act perform is valid or not.

Conclusion
To conclude, it can be stated that Holy Quran is consisted of such directions and commands of
God, which are indiscriminately same for all portions of human society and all regions of the
world. The reality is that no other book has so far provided and interpreted laws in such
definite and impartial manner in which the Holy Quran has provided and interpreted the law.
Due to these features and above-mentioned ones, the Holy Quran is considered as first primary
or fundamental source of Islamic Law.
 PAPER 2 ENGLISH JURISPRUDENCE
1. Four definitions of Jurisprudence

WHAT IS JURISPRUDENCE?

The philosophy of law, or the science which treats of the principles of positive law and legal
relations. "The term is wrongly applied to actual systems of law, or to current views of law, or
to suggestions for its amendment, but is the name of a science. This science is a formal, or
analytical, rather than a material, one. It is the science of actual or positive law. It is wrongly
divided into 'general' and 'particular,' or into 'philosophical' and 'historical.' It may therefore
be deigned as the formal science of positive law." Ho 11. Jur. 12. In the proper sense of the
word, "jurisprudence" is the science of law, namely, that science which has for its function to
ascertain the principles on which legal rules are based, so as not only to classify those rules in
their proper order, and show the relation in which they stand to one another, but also to settle
the manner in which new or doubtful cases should be brought under the appropriate rules.
Jurisprudence is more a formal than a material science. It has no direct concern with questions
of moral or political policy, for they fall under the province of ethics and legislation; but, when
a new or doubtful case arises to which two different rules seem, when taken literally, to be
equally applicable, it may be, and often is, the function of jurisprudence to consider the
ultimate effect which would be produced if each rule were applied to an indefinite number of
similar cases, and to choose that rule which, when so applied, will produce the greatest
advantage to the community. Sweet.

Ulpian
The Roman Jurist, Ulpian, defined Jurisprudence as "The observation of things human and dive,
the knowledge of just and unjust."

Salmond
Salmond defines Jurisprudence as the "Science of the first principles of civil law".

In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state. This
kind of law consists of rules applied by courts in the administration of justice.

There are three kinds of laws that govern the conduct of human in a society.
Theologian Laws - derive their authority from a divine or superhuman source intended to
regulate human conduct as well as beliefs and are enforced by spiritual rewards or penalties
in the other world (ultra-mundane sanctions)
Moralist Laws - Man-made that exist in all societies, both primitive and most civilized. There
is no definite authority to enforce the laws, but the public.

Jurist Laws - Regulates external human conduct only and not inner beliefs. They can exist in
politically organized societies, which has a Government. They are enforced by courts or judicial
tribunals of the society which applies a variety of sanctions ranging from fines to capital
punishments.

According to Salmond, Jurisprudence is the science of first principles of jurist law or in

Salmond's words civil law.

Austin
Austin defines Jurisprudence as the "Philosophy of Positive Law".

Positive Law means the law laid down by political superior to regulate the conduct of those
subject in his authority. The positive law is identical to civil law. However, the term Philosophy
is misleading. Philosophy is the theory of things, man and divine, while Jurisprudence only
deals with man-made law.

Holland
Holland defines Jurisprudence as "The Formal Science of Positive Law". He says "Jurisprudence
deals with the human relations which are governed by rules of law rather than with the
material rules themselves."

Formal science differs from material science in the way that formal science deals with
fundamental principles underlying and not concrete details.

2. Four definitions of Law

Lecture on Concept of laws

Introduction:
The term Law mainly used in two senses. In abstract sense law means the system of law such
as law of Bangladesh and in concrete sense it means a statute, enactment or ordinance. The
rule of human action is known as law.
 Definition of law:
Law is a social science, grows and developed with the growth and development of the society.
In order to keep peace with security the definition and scope of law must be continue to
change. As a result it is not possible to give an exact definition of law. Jurists have defined law
from different angles:

 John Austin: Law is the command of sovereign authority, to his subject brings them to a course
of law.
 Salmond: Law is the body of principles recognized and applied by the state in administration of
justice.
 Article 152 of our Constitution: Law means any Act, Ordinance, Order, Regulation, bye law,
notification or other legal instrument and any custom or usage having the force of law in Bangladesh.

So law is a set of rules which has force to ensure rights and this force will be applied by the
state though its organ.

 Distinction between Substantive law and Procedural law:

Law has to pay an important rule in the administrative of justice. It has a dual role to pay in
the attainment of justice.

Firstly: It determines those rights which can be remedied by the legal procedural in case of
breach.

Secondly: It lays down the procedure for the enforcement of legal rights.

From this point of view, law may be either substantive law or procedural:

Substantive law: When a particular law defines rights and obligation or crimes or any statute
it is called substantive law e.g. Law of Contract, Law of Property etc.

Procedural law: When a particular law determines the remedies or outlines the procedure of
litigation, it is called procedural law e.g. Civil Procedure Code, Criminal Procedural Code etc.

Besides there are certain laws that cover both the categories of law e.g. Substantive or
procedural law. Example is the Evidence Act 1872.

Comparison Chart:
The distinction between the substantive and procedural law is not an always easy and clear-
cut. The distinctions are as follows:
 As to Definition: Substantive law deals with those areas of law which define rights and
obligations of individuals where as procedural law determines the remedies or outlines the
procedure by which substantive law can be enforced.
 Structure: Substantive law deals with structure and fact of the case where as procedural law

define the step by step process that the cases go though.

 Application: Substantive law cannot be applied in non legal contexts where as procedural

law can be applied in non legal contexts.

 Regulation: Substantive law regulated by the Act of Parliament where asprocedural law
regulated by the statutory law.
Regulated Affairs: Substantive law determines the conduct and relations of the parties in
respect of the matter litigated where as procedural law regulates the conduct and relations of
courts and litigants in respect of litigation.
 Lawcare: Substantive law is presumed to be prospective upon the footing of the rules evolves

by court where as procedural law is presumed to be retrospective on the theory that no body
has a vested right in procedure.

 Distinction between Civil Law and Criminal Law:

Civil and criminal law are two broad and separate law. The differences between civil and
criminal law turns on the difference between two different objects e.g. redress and
punishment.

Civil law:
The term civil law is derived from the Latin term Jus Civile. The law enforced
by the state is called civil law or law of the land. The forced of the state is section behind this
law. Civil law is essentially territorial in nature and applied within the territory of the state
concerned.

Criminal law: Criminal law or law of crime is that branch of law which deals with crime.
It is necessary for the maintenance of laws and order of the state. Example law includes cases
assault better and case on murder.

Comparison Chart:

The differences between civil and criminal law can be most visibly seen.
 As to definition: Civil law deals with the dispute between the private individual in which
compensation is awarded to the victim where as criminal law deals with the offence which is
crime against society as whole.
 Nature: Civil wrong are private wrong where as crime are public wrong.
 Object: The object of civil law is to redress wrong and to protect individual citizen of the
country where as the main object of criminal law is to protect the community and to punish
the offender.
 Violation: The person whose right is violated can only bring civil suit where as any person
even not directly affected can bring criminal case.
 As regard termed: In Civil matters parties are termed as plaintiff and defendant where as in
criminal case parties are addressed as prosecution and accused.
 The word suit is used in civil proceeding that is civil suit where as the word case is used in
criminal proceeding that is criminal case.
 Time limitation: Time limitation is followed in civil suit or proceeding where as there is not
time limitation in criminal case or proceeding.
 In civil suit private individuals are the parties where as in criminal case state must be a party
and prosecuted by a public prosecutor.
 Consent of the victims: In civil suit the consent of the victims is essential where as the
consent of victims is immaterial in order to bring criminal charge against the accused.
 Regulation: The civil law attempt to regulate the relation and behavior of individual
where as criminal law regulate the conduct of all the members of the community.

3. Kinds of Law
GENERAL LAW AND SPECIAL LAW
The whole body of law can be dividing into two parts: general law and special law. General
Law consists of the general or the ordinary law of the land. Special law consists of the general
or the ordinary of the land. Special law consists of certain other bodies of legal rules which are
so special and exceptional in their nature, source or application that it is inconvenient to
treated them as standing outside the general and ordinary law. General Law consists of those
legal rules which are taken judicial notice of by the courts whenever there is any occasion for
their application. Special law consists of the legal rules which courts will not recognize and
apply them as a matter of course but which must be specially proved and brought to the notice
of the courts by the parties interested in their recognition.

According to is meant the knowledge which any courts ex-officio, possesses and acts upon as
contrasted with the knowledge which a court is bound to acquire on the strength of evidence
produced for the purpose. For example, the court is presumed and bound to take judicial notice
of the fact that there is monarchy is England and a republic in Pakistan.

2. Kinds of Special Law

Salmond refers to six kinds of special laws and those are Local Law, Foreign Law, Conventional
Law, Autonomic law and International Law as administered in Prize Courts.

a. Local Law
It means law which applies to a particular locality. It may be local customary law having its
orign in immemorial customs prevailing in that locality or local enacted law, proceeding from
local legislative authorities such a country Councils, Borough Councils, Municipalities etc.

In addition to local customary law, there may be local enacted law which consists of
enactment emanating from subordinate local legislating authority. They are recognized as
having full force in the locality for which they have been formulated.

b. Foreign Law
It is essential in many cases to take account of a system of foreign law and to determine the
rights and liabilities of the parties on that basis. Ignorance of law is no excuse and everyone is
supposed to know the law of the land.

c. Conventional Law
Conventional Law has its source in the agreement of those who are subject to it. Agreement
is law for those who make it. Examples of conventional law are the rules of a club or
cooperative society. Some other examples of conventional law are the articles of association
of a company, articles of partnership etc.

d. Autonomic Law
By autonomic law is meant that species of law which has its source in various forms of
subordinate legislative authority possessed by private person and bodies of persons. A railway
company make bye laws for regulating its traffic.

3. International Law
International Law is a kind of conventional law. As a special law, it refers to that portion of the
law which regulates the practice of the capture of ships and cargoes at sea in times of war.
International law requires that all states desiring to exercise the right of capture must
establish and maintain within their territories what are known as Prize Courts.

4. Imperative Law Theory and Sovereignty of State

INTRODUCTION:

The theory of legal realism, like positivism, looks on law as the expression of the will of the
state but sees it as made through the medium of Courts. Law no doubt is the command of the
sovereign, but the sovereign to the realist is not the Parliament but the Court.
1. IMPERATIVE OR AUSTIN'S THEORY OF LAW:

Austin says that law is a command which obliges a person or persons to a course of conduct.
It is laid down by a political sovereign and enforceable by a sanction.
2. FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

A. Command.
B. Sovereign.
C. Sanction.

A. COMMAND: According to Austin: Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands: There are commands which are laws and which is not, Austin
distinguishes law from other commands by their generality. Laws are general commands,
unlike commands given on parade grounds and obeyed there then by the troops.
B. SOVEREIGN: According to Austin, a sovereign is any person or body of persons, whom the bulk
of a political society habitually obeys and who does not himself habitually obeys, some other
persons or persons.
Characteristics of Sovereign:

(i) Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign persons or
body of persons.
(ii) Source of Power: Prof. Laski says that there are three implications of the definition of
sovereignty given by Austin. The state is a legal order in which there is a determinate authority
acting as the ultimate source of power.
(iii) Indivisible Power: The power of sovereign is indivisible. It cannot be divided. Accordingly to
Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one
person or a body of persons.
(iv) Habitual obedient by People: The chief characteristic of sovereign lies in the power to exact
habitual obedience from the bulk of the member of the society.
C. SANCTION: The term sanction is derived from Roman Law. According to Salmond "Sanction is
the instrument of coercion by which any system of imperative law is enforced. Physical force
is the sanction applied by the state in the administration of justice.
3. CRITICISM: Austin's theory of law has been criticized on many grounds.
1. Laws before State: According to Historical School, law is prior to and independent of political

authority and enforcement. A state enforces it because it is already law. It is not correct that
it becomes law because the state enforces it.
2. Gunman Law: Some have criticized the positivist theory of law as a theory of gunman, as it
makes no real distinction between a law and the command of a bank-robber who points his
gun at the bank clerk and orders him to give him money.
3. Generality of Law: According to Austin, law is a general rule of conduct, but that is not
practicable in every sphere of law. A law in the sense of the Act of the legislature may be
particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all
persons.
4. Promulgation: According to Austin, law is a command and that has to be communicated to
the people by whom it is meant to be obeyed or followed but this is not essential for the validity
of a rule of law.
5. Law as Command: According to Austin, law is a command of the sovereign but the greater
part of a legal system consists of laws which neither command nor forbid things to be done
e.g., right to vote.
6. Existence of Personal Commander: The term command suggests the existence of a personal
commander. In modern legal systems, it is impossible to identify any commander in the
personal sense.
7. Refusal of Precedents as Laws: The bulk of the English law has been created by the decisions
of the Court. To describe the judges as delegates by the positivists is misleading.
8. Sanction: The concept of sanction is also misleading as in modern democratic country, the
sanction behind law is not the force of the state but the willingness of the people to obey the
same.
9. Sanction is not essential elements: Sanction is not an essential element of law, as in civil law
no such sanction is to be found.
10. Disregard of ethical elements: According to salmond, Austin's theory of law is one-sided and
inadequatic. It disregards the moral or ethical elements in law.
11. Not applicable to International Law: Austin's definition of law cannot be applied to
International law that is to say that International Law is not an imperative law. The
International law is not the command of any sovereign, yet it is considered to be law by all
concerned. (xii) Not Applicable to constitutional law: Austin's definition of law does not apply
to constitutional law which cannot to called commands of any sovereign. Constitutional law
of a country defines the powers of various organs of the state.
4. IS MORAL LAW IMPERATIVE: Moral law has also been called the divine law, the law of reason,
the universal or common law or eternal law. It is called the command of God imposed upon
men. Natural law appeals to the reason of men. It does not possess physical compulsion. It
embodies the principles of morality. Natural or moral law exists only in an ideal state and
differs from positive law of state. In Austin view of law morality altogether ignores therefore
moral law is not an imperative law.

CONCLUSION:

To conclude, I can say, that inspite of criticism of Austin's theory of law, it cannot be denied
that Austin rendered a great service by giving a clear and simple definition of law. He makes
a distinction between what law is and what it ought to be. It seeks to define law not be
reference to its contents but according to the formed criteria which differentiate legal rules
from other rules such as those of morals, etiquette etc.
 PAPER 3 CONSTITUTIONAL LAW I
1. Sources of American Constitution

2. Salient Features of American Constitution

Silent Feature of U.S.A Constitution
Introduction

The American Constitution enacted at the convention of Philadelphia in 1789. It consist on

seven articles which are not more than seven thousand words and now is with twenty six
amendment. The ten amendments for the security of fundamental rights.

Silent Features Of USA Constitution

These are following silent feature of USA Constitution.

(i) Written

The USA Constitution is written Constitution which is made at Philadelphia convention in 1789.
It consist on seven articles which are not more than seven thousand words.

(ii) Brief Constitution

The USA Constitution is the briefest constitution over all the world. It consist on seven articles
which are not more than seven thousand words.

(iii) Enacted Constitution

The American constitution is enacted Constitution which framed at convention of Philadelphia

in 1787 and ratify in 1788 and implied in 1789.

(iv) Rigid Constitution

The American Constitution is the rigid constitution because the process of amendment in it so
complicate as the proposal of 2/3 majority by congress or state and the ratification must be
by the three fourth of majority without only twenty six amendment in constitution during two
hundred years.

(v) Supremacy of Constitution

The USA constitution has supremacy over all law’s parties, peoples or groups of the state.

(vi) Sovereignty of the Peoples

The USA Constitution shows the sovereignty of the people in the very start write that “ We
people united states established the constitution for USA.”
 (vii) Federalism

The constitution established the federal form of Government in which the powers divided
between center and states where there is conflict between center and state. The central
powers dominate.

(viii) Separation of Power

The Constitution is based on the doctrine of separation of power. It is not express in

constitution but is implied in which the three pillar of Government not interfere in each other
matters.

(ix) Check and Balance

In is also the system of check and Balance in it the executive check judiciary and legislation,
judiciary check, legislation and executive, etc.

(x) Bicameralism

The constitution lays down the legislation as bicameralism. In which one congress, which
consist on senate and House of Common. The senate member is two from every state. The
member of House of Representative are according to population current are 538.

(xi) Dual Citizenship

The American constitution give every citizen is dual domicile as the citizenship of American
and state.

(xii) Dual Party System

In it after convention decided the two dual party system. In American two strong parties

 Democrats

 Republicans

(xiii) Independence of Judiciary

In it the judiciary is independent and not work under any authority.

(xvi) Fundamental Rights

The fundamental rights secure in constitution in first three amendments.

(xv) Spoil system

It consist on spoil system in which new president spoil the old cabinet.
(xvi) Conventions

Conventions play very important role in constitution. As, the president and vice President from
different states. It is fruit of convention.

(xvii) Republican

In it the republican form of Government. People elect their members.

(xviii) Hidden Beauty

It has hidden beauties which are use as to custom in war etc.

(xix) Federal Supremacy

In it the federal Government or law is supreme over any state law.

Conclusion

To conclude, it can be stated that American constitution can be considered as the oldest
written constitution of the world. Since its codification, it has been changing so as to fulfill new
needs of time. And amendments are playing important role as far as changes in American
Constitution are concerned.

3. Sources of British Constitution

Sources of the British Constitution
I. Source

By the word source is meant the formal origin of a rule which confers legal force upon that
rule. The word source may also be used other senses: thus the historical sources of a written
constitution include both the mediate circumstances in which it was framed and adopted, and
also the long-term factors which influenced its making.

II. Nature of the Constitution

If the United Kingdom possessed a written constitution, the main rules of constitutional law
would be contained within it. Alterations to these rules would be made by the procedure laid
down for amendment of the constitution. In all probability, Parliament would be authorized
to make detailed provision for such matters as the machinery of elections and the structure
of the courts. If a court exercised the function of interpreting and applying the constitution in
disputed cases, its decisions would be an authoritative indication of the meaning of the
constitution.
III. Kind of the rules of the Constitution

The rules of the British Constitution may be divided as legal rules and non-legal rules. The
detail of the difference may be discussed as under;

1. Sources of legal rules

In the absence of a written constitution, the main sources of legal rules of the constitution may
be described as under

a. Legislation

Legislation acts of Parliament; legislation enacted by ministers and other authorities upon
whom parliament has conferred power to legislate; exceptionally, legislative instruments
issued by the Crown under its prerogative powers; and since 1973, legislation enacted by
organs of the European Communities.

In the absence of a written constitution, many acts of Parliament have been enacted which
relate to the system of government. There are few topics of constitutional law which have not
been affected by legislation. Those statutes which deal with matters of constitutional law do
not form sections of a complete constitutional code. Some of the instances of legislation in
antiquity are as under;

i. Magna Carta

Magna Carta, first enacted in 1215 and confirmed on numerous occasions thereafter, was
passed by the English Parliament long before the formation of the present United Kingdom.
The importance of Magna Carta lies in the fact that fact that it contained a statement of
grievances, the settlement of which was brought about by a union against the King of
important classes in the community.

ii. Petition or Right

Another document enacted by the English Parliament at a later period of constitutional

conflict is the Petition of Right 1628. The Petition of Right contained protests against taxation
without consent of the parliament, and arbitrary imprisonment etc.

iii. Bill of Rights and claim of Rights

The ‘Glorious Revolution’ of 1688 brought about the downfall of James II of England and James
VII of Scotland from his two thrones and the re-establishment of the monarchy in the two
kingdoms on terms laid down by the English and Scottish Parliaments respectively. These
terms were accepted by the incoming joint monarchs, William and Mary. In England it was
the House of Lords and the remnants of Charles II’s last Parliament who in 1689 approved
the Bill of Rights which was later confirmed by the post-revolution Parliament.

iv. The Act of Settlement

The act of settlement 1700, passed by English Parliament, not only provided for the succession
to the throne, but added important provisions complementary the Bill of Rights, especially.
The Bill of Rights and the Act of settlement marked the victory of parliament over the claim of
kings to govern by the prerogative.

v. Other statutes of constitutional importance

It is not intended to cataloger other principle statutes that form part of constitutional law. To
illustrate that statute law is a vital source of constitutional law it is sufficient to mention the
Act of Union with Scotland 1707, the Parliament Acts 1911 and 1949, the Grown Proceedings
Act 1947, the European Communities Act 1972, the Race Relations Act 1976, the
representation of the People Act 1983, and the public order act 1986, all of which will be
discussed in the book.

b. The common law proper

This consists of the laws and customs of the realm which have from early times been declared
to be law by the judges in their decisions in particular cases coming before them. In the reports
of these cases are to be found authoritative expositions of the law relating to the prerogatives
of the Crown, the ordinary remedies of the subject against illegal acts by public authorities
and officials and the writ of the habeas corpus, which in English law protects against unlawful
invasion of personal liberty.

c. Interpretation of statute law

The courts have no authority to rule on the validity of an act of Parliament (although they have
such authority in the case of subordinate legislation) but they have the task of interpreting
enacted law in cases where the correct meaning of an Act is disputed. Important issues of
public law may arise out of the interpretation of statutes.

d. Judicial precedent

Judicial precedent is the decision of the courts expounding the common law or interpreting
legislation. Since 1973, this includes decisions of the European Court of Justice in relation to
community law.
e. Custom

Another source of legal rules is custom, i.e rules of conduct based upon social or commercial
custom which are recognized by judicial decision as having binding force. Custom of this kind
is not today an important source of constitutional law. But many rules of the constitution
which do not have the force of law are based on the customary usages of various organs of
government.

d. Secondary sources

Another source of legal rules is custom, i.e. rules of conduct based upon social or commercial
custom which are recognized by judicial decision as having binding force. Custom of this kind
is not today an important source of constitutional law. But many rules of the constitution
which do not have the force of law are based on the customary usages of various organs of
government.

f. Secondary Sources

Secondary source of constitutional law is to be found in the opinions and conclusions of writers
of books of authority.

2. Non-legal rules of constitution

Many important rules of constitutional behavior, which are observed by the Sovereign,
the Prime Minister and other ministers, members of Parliament, judges and civil servants, are
contained neither in act nor in judicial decisions. Disputes which arise out of these rules rarely
lead to action in the courts and that judicial sanctions are not applicable if the rules are broken.
Constitutional writers have applied a wide variety of names to these rules; the positive
morality of the Constitution, the unwritten maxims of the constitution, and a whole system of
political morality, a whole code of precepts for the guidance of public men.

a. Constitutional Conventions

The word “conventions”, refers to rules of political practice which regarded as binding by those whom they concern,
especially the sovereign and statement, but which would not be enforced by the courts if the
matter came before.

Conventions are found to a greater or less extent in most countries that have written
constitutions. This is so not only in the common wealth countries but also, for example, in the
United States. There the method of electing the President and the manner of choosing the
President’s cabinet which are governed largely by convention.
 b. Important Conventions

Some of the important conventions are;

 The ruler does not veto the bills passed by the Parliament. Moreover, he can nominate new
peers in order to counteract the opposition from the House of Lords.

 The King,/Queen does not preside over the meetings of the cabinet; this function is performed
by the Prime Minister, hence it is possible to concentrate governmental responsibility in the
cabinet.

 Prime minister and Finance minister, both are taken from the House of Commons.

 The sovereign invites the leader of the majority party of the House of Commons, to form the
cabinet.

 The ruler does not normally turn down the advice of the Prime Minister regarding the
dissolution of the Parliament and holding of fresh elections. It is to be noted, that the Prime
minister normally tenders such advice after no-confidence motion has been passed against
the cabinet in the House of Common.

 Cabinet remains in power so long as it commands the confidence of the majority party within
the House otherwise it has to resign.

 All the ministers are collectively accountable to the House of Commons. The whole cabinet has
to resign in case of vote of no-confidence has been passed against any of the cabinet-rank
minster.

 Parliament meets at least once a year. Moreover, every bill is given three readings within the
Parliament before being translated into law.

 The speaker observes complete neutrality while presiding over the sessions of the House of
Commons. He does not take part in the deliberations nor casts his vote except to break tie
when the votes are equally divided.

 The Law-Lords participate in the meetings of the House of Lords when it holds it s session as a
court of appeal, while other members remain absent.

 All money bills originate in the House of Common.

 All civil servants of the Queen are tried in the same courts as ordinary citizens

 Prime Minster always keeps the Queen informed about all important decisions of the Cabinet.
In addition, he acts and a link between the cabinet and the Monarch.
 The Prime minister prepares the agenda of the House of Commons in close collaboration with
the leader of the opposition. Supremacy of the political sovereign, in fact, is based on
conventions as the courts do not give this body legal recognition.

 Supremacy of the political sovereign, in fact, is based on conventions as the courts do not given
this body legal recognition.

c. Some examples of Non-legal rules of the constitution

 It is rule of common law that the royal assent must be given before a Bill which has been
approved by both Houses of Parliament can become an Act of Parliament.

 At common law the Sovereign has unlimited power to appoint whom she pleases to be her
ministers. Statutes provide for the payment of salaries to ministers, and limit the number of
appointments which may be made from the House of common.

 Although the conduct of a general election is governed by detailed statutory rules, there is no
legal which regulates the conduct of the Prime Minister. When the result of the election is
known.

 Superior judges in England and Wales hold their offices by statute during good behavior, subject
to a power of removal by the Sovereign on an address presented to her by both Houses; by
statute they are disqualified from membership of the commons.

 The office of Speaker of the House of Commons has been recognized by statute. His election is
the first business of a newly elected House.

4. Salient Features of British Constitution

Salient Features Of British Constitution
Introduction

British constitution system is the oldest democratic system in the modern world. The British
were the first to discover how to manage a large state on democratic principles. Greate Britian
is mother of democracy.

There are so many qualitis of british constitution it is called Salient Feature of UK

Constitution. There qualities are as follow

i) Unwritten
Most important feature of British constitution in unwritten. It is said that UK constitution is
unwritten because it is not available in single book. Their problems are discuss in other book.
Such as parliament Act of 1911,and ACt of satlement.

The orgion of constitution is unwritten and these problem are discuss in other books, it
consist other tradition.

ii) Flexiable Constitution

The British constitution is flexible in its nature because, with the simple majority this
constitution can amend, replace and rejected. So,its amendment is very easy as we compare
with other non-flexible constitution.

iii) Evolutionary Growth

The British constitution has evolutionary growth because it developed time to time and
through passage of time this constitution grow.

iv) Unitary
This is a also slient feature of UK constitution that single Government run the function of
UK.There is no part in this regard single Government mentain all system and this government
is responsible for enforcement of law.

v) Bicarmeralism
The parliament consist of two chambers House of Lords and House of Common. House of
common is most popular because it representative are elected from citizen while house of Lord
is inheritan. They are not elected, Queen selected them.

vi) Rule of Law

Uk constitution providers rule of law. All the persons are equal in the eyes of law. If any person
violates the law, he should face trial of the case in the Government an no person is given
imprisonment until his offence is proved in the court.

vii) Supermacy of constitution

Their is supermacy of constitution in UK. Every person problem is settled according to
constitution.

viii) Independence of Judiciary

In UK, their is independent judiciary. Judges are bound to obey and respect constitution. Their
are independently makes the decision under the court.

The receive handsome salary. Nobody, above at the caused seperation of power.

ix) Collective Responsibility

Ministers must stand together and they cannot oppose the Government policy. Every minister
is also individually responsible to the house of commons and the crown.

x) Fundamental Rights
Fundamental rights of the citizen has not been incorporated in the from of a list in the English
constitution.

Consitution law is not creator but a product of fundamental rights, which have been
recognized from time to time by the courts.

xi) Conservativeness
The British constitution is a symbol of conservativeness. The trend of the people of UK is
absolutely in favour of old institution and this concept is existence of conservatism.

xii) Limited Separation of Power

In British, there is limited sparation of power. There is concentration of polictical power in the
parliament. Nevertheless many safegards have been provided especially under Act of
setlament of 1701 to secure the independence of judiciary from under influence on the part of
other two braches of the Government.

xiii) Two Party System

Two party system is very important in any democratic system. It is against the dictator ship.
The party selected by majority gets elected. Two parties in British polictical system are

a) Conservation Party

b) Labour Party

xvi) Contrast Between Theory and Practice

There is considerable gap between theory and practice in Britain e.g according to convention
of the majority party in the newly elected parliament to form the cabinet, while all the
ministers are appointed by the Prime Minister.

Conclusion
To conclude, i can say, that UK constitution in neither absolutely unwritten nor absolutely
written. It is a combination of both and has made a circuite for the goble and has become the
common possession of civilized man.
 PAPER 4 LAW OF CONTRACT
1. Valid Contract
Contract and it’s Valid Essentials
1. Introduction

Basic philosophy, which works behind a contract, is based on a Latin phrase, and this phrase
states that agreement must be kept. However, only valid contract can be kept. And for making
of a valid contract, essentials and purpose of the contract are the very importance.

2. Definition

According to Contract Act, an agreement, which is enforceable by law, is a contract.

3. Essentials of Valid Contract

Following are the main essentials of a valid contract.

i. Free Consent of Parties

An important essentials of a valid contract is that it should be made through free consent of
parties to contract.

ii. Lawful and Moral Object

Another important element of a valid contract is that it should be made with lawful and moral
object.

iii. Proposal

For making of a valid contract, it is essential that one party to contract should make a proposal
to another party to contract.

iv. Acceptance

For making of a valid contract, it is necessary that proposal should be accepted by the party
to whom the proposal has been made.

v. Lawful Consideration

For making of a valid contract, it is essential that there should be lawful, moral and possible
consideration, and that consideration should not be doubtful.

vi. Capacity of Parties

An important essential of a valid contract is that parties to contract should be capable of
making contract. Persons like minor or insane cannot make a valid contract.

vii. Certainty of meaning

Another important essential of a valid contract is that wording of a contract must be clear and
not uncertain or vague. Uncertainty makes a contract void.

viii. Legal Relationship

For making of a valid contract, it is necessary that contract should be made to create legal
relationship between the parties and to define their legal rights and responsibilities under the
contract.

ix. Enforceable by Law

As agreements, which are enforceable by law, are contracts, therefore it is essential that
contract should be capable of being performed or enforced under law.

Finial Analysis

To conclude, it can be stated that a contract, which does not have main essentials of a valid
contract, cannot be considered a valid contract. However, a valid contract can be either oral
or written one.

2. Consideration in Contract
Concept of consideration as expounded by the Contract Act
Consideration
When, at the desire of the promisor the promisee or any other person who has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstained from
doing, something, such act or abstinence or promise is called a consideration for the promise.
Section 2(d)

At the desire of the promisor

The word "at the desire of the promisor" in S.2 do not necessarily contemplate a promisor
who, at the time, possesses contractual liability.

Essentials of consideration
Consideration is what moves from the promisee whether it be an advantage to the, promisor
or a detriment suffered by the promisee where parties have lawfully entered into mutual
commitment, whit open eyes and free volition, maturing into contractual obligation; such
cannot easy be allowed a unilateral and, willful disclaimer.

Consideration must be conducive to contract

The words 'at the desire of the promisor' imply a promise which has a real effect in conducing
the contract.

At the desire of third party

Where a person advanced money to the son on an undertaking given by his father and
obtained promissory notes for the amount advanced, it was held that those pronotes were
without consideration inasmuch as the advances were not made at the desire of the son who
was the promisor under the pronotes.

Consideration need not be to the benefit of the promisor

If the promisee does some act by which a third person is benefited which he would not have
done but for the promise, the consideration is sufficient. Therefore guarantees executed in
favour of plaintiff against loan advanced by plaintiff were good consideration.

Consideration may proceed from third party

The consideration for a promise need not necessarily move from the promisee but may move
from a third party. In marine insurance broker's undertaking to pay premium consideration
though it moves from a third person.

Compromise as consideration

The compromise of doubtful rights is a sufficient basis of and forms a sufficient: consideration
for the agreement. A. compromise is an agreement to put an end to a dispute and to terminate
or void litigation, and real consideration is not a sacrifice of right but an abandonment of a
claim.

Consideration to one compromiser is consideration to all

Consideration paid to one of several joint promisors is sufficient consideration to support a

promise to pay made by others.

Reciprocity is not necessary

Reciprocity of obligations is not of the essence of consideration. An act done of forbearance
made in return for a unilateral promise is a sufficient consideration to support the promise.

Inadequate consideration

A smaller sum of money advanced can validly constitute consideration for acceptance of
liability to a bigger amount by the debtor.

Absence of consideration

A meritorious and a gratuitous consideration such as natural love and affection or obedience
and submission by way of respect cannot be good consideration or valuable consideration.

Proof of consideration

Where the document is silent in regard to consideration, but recites the particular
consideration which induced the party to execute the document it will not be competent for
the party to show that in addition therefore, but on which the document there was some other
document therefore, but on which the document is silent. But recital in contract that the
vender has received consideration can be him, by proving a collateral agreement to the effect
that money was to remain it the vendee for a specific purpose.

a. Onus of proof

Onus of proving that there was no consideration rests on the person who denies it. When
execution of a document and receipt of consideration has been admitted at the time of
registration, the burden of proving non-receipt of consideration falls upon the party who
makes such allegation.

b. Who can challenge payment of consideration?

The law does not allow strangers who have no interest at stake to intermeddle with the affair
of other persons. Hence no stranger can challenge a transaction on the ground of want of
consideration.

Future promise as consideration

A promise to do something in future is legal consideration. A promise so long as it remains

executor will not amount to consideration on the eye of the law unless it involves a legal
obligation which the promisor could be compelled to perform. But where it involves no such
obligation its execution alone will constitute sufficient consideration.

3. Void Contract
Voidable contracts and Void Contracts
(1) Voidable Contract
An agreement which is enforceable by law at the option of one or more of the parties thereto,
but not at the option of the other or others, is a voidable contracts. Section 2 (I).

The word voidable in the contract Act has been used to mean that the contract is binding on
the parties unless set aside on the ground that the transaction was vitiated by fraud, undue
influence, misrepresentation or any other circumstance which would entitle a party to a
contract to avoid it.

(a) Want of mutuality

A one-sided contract although extremely unfavorable to one of the parties is still a valid and
binding contract unless the Court can find that there is no mutuality or that there is really no
obligation upon one of the parties to fulfill his part of the contract. Thus when consent to
agreement was caused by misrepresentation and deceit, the same would became voidable at
the option of persons who was misled or deceived.

Where a contract is not binding upon one of the parties to it because it is not in the form in
which it is required to be executed by the mandatory provisions of a statute and what has
been done by that party is to be regarded only as a part performance under the contract, its
consideration being executor, it is open to the other party to successfully claim that the
contract is void on the ground of absence of mutuality and not merely voidable.

(b) Mis-representation on major point

Misrepresentation on material point which induced party to enter into contract would be good
ground for setting aside such contract.

(c) No objection raised to validity of contract

When a voidable contract is acted upon by a party as valid, the party is stopped form denying
its validity. Where no objection was raised to an arbitration agreement at the stage of
arbitration but subsequently when the award was given, it was contended that the agreement
was void and it was sought to be rescinded. It was held that as the party had not raised any
objection to the agreement at any earlier stage, and it was acted upon as valid, no objection
could be taken to it subsequently.

(2) Void Contract

A contract which ceases to be enforceable by law becomes void when it ceases to be
enforceable. Section 2 (j)

(a) Unenforceable by law

The words “unenforceable by law” mean unenforceable by substantive law, and not by reason
of some procedural regulation. Therefore failure to sue for possession of the land within 3 year
as required by Art. 47, Limitation Act does not make the contract of sale void within the
meaning of S. 65 of the Contract Act.

Similarly a contract embodied in a document which is compulsorily register able, does not
render the contract void ab initio if that document is not registered.

(b) Non-performance of void contract

Where a void contract remains unperformed, the amount advanced by one of the parties
thereto can be recovered. Where a contract of transfer of property is void, and such property
can be followed, the property belongs to the promisee and can be taken after. There is each
value to support him for restoring the property to him. Be that as it may where the property
is not traceable and the only way to grant compensation is by granting a money decree and
the transferor is a minor; decreeing that claim would almost tantamount to enforcing the
minor’s pecuniary liability under the contract which is void. There is no rule of equity, justice
and good conscience which entitles a court to enforce a void contract of a minor against him
under the cloak of equitable doctrine.

Distinction between void and voidable

A contract is said to be void in which a contract fails to be made when it seems to have been
made. A contract is said to be voidable when it has been made but it is subject to being unmade
at election of one party. To avoid is to insist on both parties being restored to position in which
they stood before the contract was made.

The expression void in the strict or accurate sense means absolutely mull that is to, say
incapable of ratification or confirmation and of no impact whatever. The statement voidable
then again is something which could be avoided or inherent vice or defect. Thus that which is
 voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the
transaction has been judicially ascertained and declared.

A common place instance of a void act or transaction in the sense of an absolute nullity is an
agreement by a person under a lawful handicap, e.g, a minor or an individual of unsound
personality. Such act is void stomach muscle initio and is inadequate of ratification or
confirmation, Law forbids the enforcement of such a transaction even if the minor were to
ratify it after accomplishing lion's share. This is plainly discernable from a case in which a thing
or an act is relatively void which the law condemns as wrong to the individual concerned who
can avoid it by appropriate proceedings. A common place instance of such transaction is that
which is brought about by undue influence, fraud, etc, which stays of full impact unless avoided
by appropriate proceeding.

Parties not competent to make agreement

An agreement by the parties who are not competent to make it is not enforceable in law. Thus
an agreement entered into by the mother alone for the marriage of the major daughter and
which was not made by her on behalf of her daughter is unenforceable. Similarly the manager
of a joint Hindu family being only representative of the co parceners cannot bring about a
valid and binding agreement when such agreement is beyond the capacity of the co-
parcencers themselves to enter into.

Agreement must be in proper form

Disappointment to consent to statutory procurements relating to the manner in which a

particular agreement should be made would render it void.

4. Discharge of Contract
5. Remedies in Contract
6. Sales of Goods Contract. Sales Vs Agreement to Sell
Sale and Agreement to Sell
Sale and Agreement to Sell

(i) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer
the property in goods to the purchaser at a cost. There may be an agreement of offer
between one part-owner and another.

(ii) A contract of sale may be absolute or conditional.

(iii) Where under a contract of sale the property in the goods is transferred from the seller to
the purchaser, the agreement is sale, however where the transfer of the property in the
goods is to take place at a future time or subject to some condition thereafter to be
complete, the contract is called an agreement to sell.

(iv) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled
subject to which the property in the goods is to be transferred. Section 4.

Essential requisites of Sale

In a contract of sale the property in the goods sold is transferred from the seller to the buyer
in exchange of money consideration called the price. The definition of a contract of sale
includes both a sale and an agreement to sell.

The essential requisites of sale may, thus, be enumerated as follows

1. There must be transfer of property or an agreement to transfer it from the

seller to the buyer.
2. The above transfer must take place in consideration of a money payment
made by the buyer.
3. This money payment is called the price
Transfer of property for something else than money will not amount to sale.
1. There must be saleable property to be transferred. Money cannot be
transferred in exchange for money price. Thus the change of a government currency
note for money is not a contract of sale.
2. Seller and buyer must be different persons. A man cannot buy him own goods.
Agreement to sell

An agreement to sell does not involve any transfer of the property in the goods. In an
agreement to sell the arrangement is that the transfer of property in the goods in (1) to take
place at some future date, or (2) subject to some condition to be fulfilled thereafter. An
agreement to sell becomes a sale when (a) the time on which the futurity depended elapses
or (b) the condition are fulfilled. As a contract of sale includes both sale and agreement to sell,
to follows that a sale a well as an agreement to sell may be either absolute or conditional.

Points of distinction between a sale and agreement to sell

The accompanying are a portion of the imperative focuses of distinction between a sale and
an agreement to sell;
 1. A sale affects a transfer of the general property in the goods to the buyer, it
creates a jus in rem. An agreement to sell gives to either party a remedy against the
person and general estate of the other for any default in fulfilling this party of the
agreement, in other words, it creates a jus in personam.
2. In case of sale, if the buyer fails to pay for the goods, the seller may sue for
the price where there is merely an agreement to sell, and the buyer fails to accept
and pay for the goods, the vender can sue for harms.
3. In case of an agreement to sell, in the event that the merchant submits a
break, the purchaser has just an individual cure against the seller a claim for
damages, the goods are still the property of the merchant, and he can discard them
as he loves. If there has been a sale, and the seller commits a breach, the buyer has
not only a personal remedy against the vender, additionally the cures which a holder
has in respect of the goods themselves, such as a suit for conversion. In many cases,
too he can follow the goods in the hands of third persons. The reasons is that on sale
the property in the goods passes to the buyer, and he becomes the proprietor or
owner of the goods.
4. In an agreement to sell, in case the goods are destroyed, the loss (unless
otherwise agreed) falls on the vender, while if there has been a deal, the misfortune
(unless otherwise agreed) fails upon the buyer, though the goods may never have
come into his possession.

7. Unpaid Seller of Goods and his Rights

Unpaid Seller and its Rights
Unpaid Seller

 The seller of goods is deemed to be an “unpaid seller” within the meaning of this Act.

 at the point when the entire of the cost has not been paid or tendered;

 at the point when a bill of trade or other debatable instrument has been received as conditional
payment, and the condition on which it was received has not been fulfilled by reason of the
dishonor of the instrument or otherwise.

An unpaid seller is a seller who has not received the hole price, or to whom the whole price
has not been tendered, or to whom a bill of trade or other debatable instrument, such as a
cheque has been given as conditional payment and the condition on which it was given has
not been fulfilled either on account of the instrument having been dishonored, or otherwise.
 If the bill of exchange or other instrument is given as absolute payment the seller will not be
an unpaid seller.

The seller is unpaid not only when the price has not in any way been paid or tendered in full,
but also if the has taken bills of exchange or other negotiable instruments as conditional
payment and the buyer has failed to meet them at has expired without the price having been
paid or tendered; and the third is, where the buyer becomes insolvent before the price is paid
or tendered. In this third case, the seller is entitled to retain possession even if the goods are
sold on credit and the term of the credit has not expired.

Unpaid seller’s rights

 Subject to the provisions of this Act and of any law for the time being in force, not withstanding
that the property in the goods may have passed to the buyer, the unpaid seller of goods as
such, has by implication of law--

(a) A lien on the goods for the price while he is in possession of the;

(b) In case of the insolvency of the buyer a right of stopping the goods in transit after he has parted
with the possession of them;

(c) A right of re-sale as limited by this Act

 Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to
his other remedies, a right of withholding delivery similar to and coextensive with his rights of
lien and stoppage in transit where the property has passed to the buyer. Section 46

Seller’s lien

Subject to provisions of this act the unpaid seller of goods who is in possession of them is
entitled to retain possession of them until payment or tender of the price in these conditions

 Where the goods have been sold without any stipulation as to credit;
 Where the goods have been sold in credit but the term of credit has expired;
 Where the buyer becomes insolvent
Case in which a lien arises

This section declares that there are three cases in which an unpaid seller is qualified for a lien.
The main is, the place good are sold using a consideration but neither the time of payment nor
the time of delivery is fixed; the second is where the goods are sold on credit but the period of
credit, the seller waives his lien during the currency of the credit, or where the seller accepts a
bill of exchange for the price payable at a future day, he waives his lien during the money of
the bill. In the last two cases the lien restores when the period of credit expires or when the
bill is dishonored.

In possession of

The lien of an unpaid seller depends upon the actual possession of the goods and upon a mere
title thereto So long as the actual possession of the goods is with the seller, the right of lien
can be exercised.

Termination of lien

The unpaid seller of goods loses his lien thereon

When he delivers the goods to a carrier or other bailee for the purpose of transmission to the
buyer without reserving the right of disposal of the goods;
 When the buyer or agent lawfully obtains possession of the goods;
 By waiver thereof

Delivery to carrier or other bailee

The general rule is that when goods are delivered to a carrier or other baliee for the purpose
of transmission to the buyer the property in the goods is completely transferred to the buyer
and the seller has, in that case, no connection with the goods. But an exception has been
recognized by law to this general rule. It is that the property in the goods does not pass to the
buyer in the above circumstances if the seller reserves the right of disposal of the goods.
 PAPER 6 CRIMINAL LAW I
1. Abetment and Criminal Conspiracy

Abetment in PPC Section 107

Abetment of a thing
A person abets the doing of a thing, who;-

(i) Instigates any individual to do that thing; or

(ii) Engages with one or more other person or persons in any conspiracy for the doing of that
thing, if a act or illicit oversight happens in pursuance of that conspiracy and in order to the
doing of that thing; or

(iii) Intentionally aids, by any act or unlawful exclusion, the doing of that thing. Section 107

Explanation

(i) A person who, by willful distortion, or by willful concealment of a material fact he is

bound to disclose, voluntarily causes or procures, attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.

(ii) whoever, either before or at the time of the commission of an act, does anything in order
to facilitate the commission of that act, and thereby facilitates the commission thereof, is
said to aid the doing of that act.

Abetment
Abetment can be committed only when there is positive evidence of either instigation or
conspiracy or intentional aid. If none of theses three elements stated above is available then
abetment does not stand proved. Therefore, mere presence at the scene of offence would
not be sufficient to make out a case of abetment. NLR 1991 Cr. 163(DB)

Instigation
‘Instigation’ shows some sort of advice for the commission of an act, which if done, would be
an offence. It necessarily indicates some active suggestion or support or stimulation to the
commission of the act itself which constitutes an offence. ‘Advice’ can become ‘instigation’
only if it is found that it was meant actively to suggest or stimulate the commission of an
offence. Advice per se, or temptation to do a forbidden thing does not amount to instigation.

Conspiracy
The distinction between the offence of abetment by conspiracy and the offence of criminkal
conspiracy, so far as the consent to submit an offense is concerned lies in this. Unless
“agreement” can be prima facie spelt out no Prima facie case under S.120-B can be said to
be made out to invite second part of S. 107. But for abetment by conspiracy mere agreement
is insufficient. A demonstration or illicit exclusion must happen in pursuance of the
conspiracy and in order to the doing of the thing conspired for.

Intentionally aids by act

If a person joins another in the commission of a crime by which he is to benefit and which it
would not be possible to commit anyway for his support, he is liable of the commission of the
crime. In order that there may be abetment by intentional aid, the commission of the crime
must have been facilitated by either an act on the part of the abettor or by his illegal omission.
The act may be one which directly assists the commission of the crime or one which merely
affords facilities for its commission. In either case the person who does such an act is an
abettor.

Illegal omission
For proving abetment by illegal omission under section 107 the accused must be shown to
have intentionally aided the commission of the offence by his non-interference. The
prosecution must be able to establish that such illegal omission was likely to have lent support
to or to have encouraged the principal offender to commit the offence in question.

Accessory after the fact

Abetment by aiding or instigating necessarily means some active suggestion or support or
stimulation to the commission of the offence itself. If the offence had already been completed
before anything was done by the alleged abettor, any subsequent action of his which might,
in any way help the main offender, will not abetment within S.107, being an accessory after
the fact which is no offence under Pakistan Law.

Charge of Abetment
It is open to the prosecution to bring a charge of abetment generally. The charge will amount
to notice to the accused that they have to meet a case of abetment in one or more of the
different ways indicated in S.107, Penal Code. But a specific charge must be framed for
abetment of an offence under S.114, P.P.C. A general charge of instigating various persons to
commit dacoities is bad. Separate acts of abetment must be distinctly specified.

Abettor
A person abets an offence, who abets either the commission of an offence, or the
commission of an act which would be an offense, if submitted by an person able by law of
 committing an offence with the same intention or knowledge as that of the abettor. Section
108.

Explanation

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

(ii) To constitute the offence of abetment it is not necessary that act abetted should be
committee, or that the effect requisite to constitute the offence should be caused.

Abetment is substantive offence

The offence of abetment is a substantive offence. Therefore the fact that the principal
cannot be brought to trial does not prevent a charge of abetment against the abettor. Even
the acquittal of the principal is no bar to conviction of the abettor.

Abettor and principal may be convicted for separate offences

The fact that his abettors have been found guilty of an offence of manslaughter only does
not prevent the principal offender from being found guilty of murder, when there is ample
evidence to support the finding. But persons punished as principals cannot also be punished
for abetment of the same offence.

Abetment by act not necessary for commission of offence

An offence of an abetting the making of a false document can be committed by attesting the
document, even if the document does not require attestation to complete it, if the person
who brings this document into existence intended that it should be attested and that the
accused should be one of the attesters.

Actual knowledge or intention necessary

In order to constitute an abetment, intention is essential. Persons having no knowledge of
the fraud could not have intended to aid the commission of an offence under section 406,
P.P.C. Where the aiding accused came a little later and were not supposed to be aware of
concealment of knife by the principal accused in his dab from where he took it out, they
could not be blamed for sharing a common intention and to have acted in concert pursuant
to pre-planned scheme with the principal accused in doing away with the deceased.

Accessory after the act

There can be no abetment of an offence after it is committed, therefore a person cannot be
convicted of abetting an offence of instituting a false charge solely on the ground that the
gave evidence in support of such charge.
 Conclusion
Abetment is rightly declared a substantive offence for the purpose very aptly defined by;

Terremy Bentham as;

“The discovery of such preparatory offence with the object of prohibiting them would reduce
the level of the principal crimes committed in consequence to them.”

Criminal Conspiracy in Pakistan Penal Code

Introduction Criminal Conspiracy
Pakistan Penal Code describes some offences, which give birth to joint and group liability. As
far as these offences are concerned, all persons, who participate in commission of any of
these offences, are equally liable for commission of such offence Criminal conspiracy is one
of these offences.

Relevant Provisions
Sections 120A, 120B(1) and 120B(2) of P.P.C. 1860.

Definition of Criminal Conspiracy

When two or more persons agree to do, or cause to be done

(i) an illegal act, or

(ii) an act which is not illegal by illegal means,

such an agreement is designated a criminal conspiracy; Section 120-A.

Provided that no agreement except an agreement to commit an offence shall amount to a

criminal conspiracy unless some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.

Explanation

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

Criminal Conspiracy
Conspiracy is a scheme which germinates in the dark alleys of sinister minds and comes to
light only when its external results are known. A conspiracy consists of a combination or
agreement by persons to do an illegal act or to effect a legal purpose by illegal means and is
complete went two or more than two persons agree to do an illegal thing.
The agreement must be the product of two consenting minds uninfluenced by any
consideration of threat, intimidation, coercion or undue influence. The word ‘consent’, which
is an essential ingredient of an “agreement” has been defined to means an action of reason
accompanied with deliberation, the mind weighing, as in a balance, the good or evil of either
side. Consent presupposes three things, a physical power, a mental power, and a free and
serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated
imposition, circumvention, surprise, or under influence, it is to be treated as a delusion, and
not as a deliberated and free act of the mind. PLD 1979 SC 53.

Criminal Conspiracy by abetment

One of the forms of abetment is conspiracy, and it makes no difference that conspiracy by
way of abetment requires an overt act, whereas conspiracy under sections 120-A to commit
an illegal act as is conspiracy under section 120-A . PLC 1956 Kar 395.

Duration of Criminal conspiracy

Conspiracy arises and an offence is committed as soon as an agreement is made and the
offence continues to be committed as long as the combination persists, viz., until
conspiratorial agreement is terminated by completion of its performance or by
abandonment or frustration, or due to some other cause.

Criminal Conspiracy is substantive offence

Conspiracy is a substantive offence, which is committed as soon as the agreement to do an
unlawful act is made. It is immaterial whether the acts reus executed. IN order to constitute
the offence of abetment by conspiracy, there must be combining together of two or more
persons in the conspiracy and an act or illegal omission must take place in pursuance of that
conspiracy, and in order to the doing of that thing. When parties concert together, and have
a common object the act of one of the parties done in furtherance of the common object and
in pursuance of the concerted plan, is the act of all. PLD 1951 Raj. 89.

Agreement to commit an offence necessary

The term “agreement” as used in relation to the offence of conspiracy is not to be construed
in any technical sense, as understood in the law of contract; nor is there any requirement that
it should be expressed in any formal manner, or words; all that is required is that the minds of
the parties meet understandingly so as to bring about an intelligent and deliberate agreement
to do the acts and to commit the offence charged. There should, indeed, be a union of two or
more minds in a thing done or to be done, or a mutual assent to do a thing.

Overt act is not necessary

 An over act, unless the conspiracy is not to commit offences is not necessary to frame a
charge under this section. Where the proof of a conspiracy depends upon proof of the
participation of the accused in an overt act which itself amount to an offences, the proper
course is to put the accused o their trial for that offence. Where all that is shown against a
person is evidence of his association with any of the conspirators that would not sufficient to
convict him being one of the parties to the conspiracy.

Proof of Criminal Conspiracy

There is no difference between the mode of proof of the offence of conspiracy and that of any
other of any other offence; it can be established by direct evidence or by circumstantial
evidence. For this evidence is not to be considered in isolation as so many bits of evidence but
the whole evidence is to be considered together and its cumulative effect to be weighted and
given effect.

Punishment of Criminal Conspiracy

(i)Under Section 120B(1) of Pakistan Penal Code, 1860;
Whoever is a party to a criminal conspiracy to commit an offence

 Punishable with death,

 Imprisonment for life or

 Rigorous imprisonment for a term of two years or upwards,

Shall, where no express provision is made in this Code for the punishment of such a conspiracy,
be punished in the same manner as if he had abetted such offence.

(ii)Under Section 120B(2) of Pakistan Penal Code 1860

Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with

 Imprisonment of either description for a term not exceeding six months, or

 With fine, or

 With both

The punishment for criminal conspiracy is more severe if the agreement is to commit a serious
offence; it is severe if offence is not very severe.

Conclusion
To conclude, it can be stated that it is wrong to mix criminal conspiracy with abetment.
Although criminal conspiracy is a form of abetment, yet it is an independent offence and is
wider in scope.

2. General Exceptions
General Exceptions in Pakistan Penal Code
Introduction
In Pakistan, Pakistan Penal Code is the major criminal law, which defines substantive offences
and prescribes their respective punishments. This code also describes some specific
circumstances in which crimes are though committed, yet offenders are exempted from
punishments. In such circumstances, it is not intention or guilty mind, which constitutes crimes,
but it is external force, which instigates mind to commit crimes.

Definition
In criminal Law, a settled principle is that no innocent should be punished even if thousand
criminals escape. Here, explanation is that it is not just to punish someone who was controlled
by a criminal as a puppet to do an illegal act. Like wise, there are certain circumstances, in
which an apparent offender is exempted from major punishment or is entitled to just minor
punishment. Such circumstances have been termed as General Exceptions in Pakistan Penal
Code.

General Exceptions in the Light of Pakistan Penal code

In Pakistan Penal Code following are General Exceptions have been provided;

(i) Mistake
If an act is done by a person, who is bound by law to do it or who, by reason of mistake of fact
and not by reason of mistake of law in good faith, believes himself/herself to be bound by law
to do it, such act is not considered an offence.

(ii) Judicial Acts

Under Pakistan Penal Code, following General Exceptions have been provided in respect of
judicial acts;

(a) Act of Judge

An act is not an offence, which is done by a judge when he/she acts judicially in exercise of any
power which is given to him/her by law or which he/she believes in good faith to be given to
him/her by law.

(b) Act Done Pursuant to Judgment or Order of Court

An act is not an offence, when it is done in pursuance of judgment or order of a court of Justice
or which is warranted by judgment or order of a Court of Justice whilst such judgment or order
remains in force.

(iii) Acts Justified By Law

An act is not an offence, when it is done by any person who is justified by law in doing it or
who, by reason of a mistake of fact and not by reason of a mistake of law, believes in good
faith himself/herself to be justified in doing it.

(iv) Accident
An act is not an offence, which is done by accident or misfortune, and which is done without
any criminal intention or knowledge in doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.

(v) Necessity
An act is not an offence, which is though done with the knowledge that it is likely to cause
harm, yet it is done it is done without any criminal intention to cause harm, and in good faith
for purpose of preventing or avoiding other harm to person or property.

(iv) Infancy
An act is not an offence, which is done by a child under seven years of age.

(vii) Child’s Immaturity

An act is not an offence, which is done by a child, who is above seven years of age and under
twelve years of age, and who has not attained sufficient maturity of understanding to judge
nature and consequences of his/her conduct on that occasion.

(viii) Insanity
An act is not an offence, which is done by a person who, at time of doing it, by reason of
unsoundness of mind, is incapable of knowing nature of act or is incapable of knowing that he
is ding what is either wrong or contrary to law.

(viii) Intoxication
Under Pakistan Penal Code, following General Exceptions have been provided in respect of
intoxication,
(a) When intoxicated Person in Incapable of Judgment

An act is not an offence, which is done by a person who, at time of doing it, is, by reason of
intoxication, is incapable of knowing nature of act or is incapable of knowing that he is doing
what is either wrong or contrary to law.

(b )When Intoxicated Person Does An Offence, which requires Particular Intent or Knowledge

In cases where an act done is not an offence unless done with a particular knowledge or intent,
a person , who does the act in a state of intoxication, shall be liable to be dealt with as if he/she
had the same knowledge as he/she would have had if he/she had not been intoxicated.

(ix) Consent
An act is not an offence, which is done with consent of victim or which is done for benefit of a
person of twelve years age or a person of unsound mind through his/her guardian’s consent
or which is done for benefit of a person without his/her consent.

(x) Compulsion
Except murder and offences against State, which are punishable with death, an act is not
offence; which is done by a person due to those threats, which cause apprehension of his/her
death.

(xii) Private Defence

Pakistan Penal Code recognizes this principle that every person has right to defend his/her
body and property. Therefore, private defence under Pakistan Penal Code is considered a
General Exception to offences.

Conclusion
To conclude, it can be stated that General Exceptions, which have been provided in Pakistan
Penal Code, are generally divided into excusable and justifiable exceptions. In excusable
exceptions, guilty mind is completely absent while acts are not left excused, but are justified
in justifiable exceptions.
3. Right to Private Defence
Private Defence Under Pakistan Penal Code
Introduction
Subject to certain limitations the law gives a right to every person to defend his body or
property, or the body or property of another person against unlawful aggression. He could
shield his right by his own force or prevent it from being violated. It is a right inherent in a
man. But the kind and amount of force is minutely regulated by law. This use of force to protect
one’s property and person is called the right of private defence.

Relevant Provisions
Sections 96, 97, 99, 100, 101, 102, 103, 104, 105, of P.P.C. 1860.

Definition of Private Defence

The term “Private Defence’ has not been defined in Black’s Law Dictionary but it does provide
a more generic definition of the term self defence, which it also extends to defending ones
property. Self Defence has been explained by the Black’s Law Dictionary as follows;

“The use of force to protect ones self, ones family or ones property from a real or threatened
attack. A Person is justified in using a reasonable amount of force in self defence, if he or she
believes that the danger of body harm is imminent and that force is necessary to avoid such
danger.”

Circumstances Where In Assailant Can Be Subjected To Use of Force,

Which Can Even Cause His Death
Followings are two circumstances where in assailant can be subjected to use of force, which
can even cause his death:

(i) Right of Private defence of body

Under Section 100 P.P.C:

Section 100 describes the situations where the death of a person may be caused, however it also

puts restrictions as are mentioned in Section 99.

Under Section 100 following are the cases where the death of a person may be caused in private defence;

(a) Apprehension of Death

Right of private defence of body can extend to causing death of an assailant when as assault
of assailant reasonably causes apprehension that death will otherwise be consequence of such
assault.

(b) Apprehension of Grievous Hurt

Right of private defence of body can extend to causing death of an assailant when an assault
of assailant reasonably causes apprehension that grievous hurt will otherwise be consequence
of such assault.

(c) Intention of Committing of Rape

Right of private defence of body can extend to causing death of an assailant when an assault
of assailant is with intention to commit rape.
(d) Intention of Gratifying Unnatural Lust
Right of private defence of body an extend to causing death of an assailant when an assault
of assailant is with the intention to gratify unnatural lust.

(e) Intention of Kidnapping or Abducting

Right of private defence of body can extend to causing death of an assailant when an assault
of assailant is with intention of kidnapping or abducting.

(f) Intention of Wrongfully Confining

Right of private defence of body can extend to causing death of an assailant when as assault
of assailant is with intention of wrongfully confining a person under such circumstances, which
reasonably causes him to apprehend that he will be unable to have recourse to the public
authorities for this release.

Conditions Precedent to Cause Death in Self Defence

Cause Law: AIR 1959 Punj 332

In this case, the court gave four cardinal conditions must exist before the taking of life of a
person is justified on the plea of self-defence.

Firstly: The accused must be free from fault in bringing about he encounter;

Secondly: There must be present and impending peril to life of great bodily harm, either real or

so apparent as to create honest belief of an existing necessity;

Thirdly: There must be no safe or reasonable mode of escape by retreat;

Fourthly: There must have been a necessity for taking life.

(ii) Right of Private Defence of Property

Section 103 Gives a person a right to cause voluntarily the death of a person who infringes,
threatens to commit an offence or commits an offence which falls under the categories
enumerated by the section following are the cause where the death of a person may be caused
in defence of property;

(a) Commission of Robbery

Right of private defence of body can extend to causing death of an assailant when assailant
commits or attempts to commit robbery.

(b) Commission of House-breaking By Night

Right of private defence of body can extend to causing death of an assailant when assailant
commits or attempts to commit house-breaking by night.
(c) Mischief By Fire
Right of private defence of body can extend to causing death of an assailant when assailant
commits mischief by fire on any building, tent or vessel, which building, tent or vessel is used
as a human dwelling or as a place for custody of property.

(d) Theft, Mischief Or House –trespass

Right of private defence of body can extend to causing death of an assailant when assailant
commits or attempts to commit theft, mischief or house-trespass under such circumstance,
which reasonably cause apprehension that death or grievous hurt will be consequence, if such
right of private defence is not exercised.

Final Analysis
To Conclude, it can be stated that it is necessary to exercise right of private defence that use
of force should have become necessary against assailant and use of force should be
reasonable. When a person uses such necessary and reasonable force through private
defence, he/she is not answerable in law for his/her deeds.
To
The Worthy Registrar,
Lahore high court,
Lahore.
SUBJECT:- APPLICATION FOR ISSUANCE OF “FREE MEDICAL TREATMENT CERTIFICATE”
Esteemed Sir,
With due veneration, it is submitted that undersigned in serving in this august
institution as Bearer (BS-03) since 2011 while presently posted in the Judges Rest House 1, 2,
5, GOR, Lahore. Since, I am entitled to free medical treatment in the various Government
Hospitals, therefore, I intend to get “Free Medical Treatment Certificate” for the medical
checkup of me and my family members (dependents) details are given below, out of which non
is the Government officer/official in any department:-

Sr. No. Name Relation Age

1. Muhammad Aslam Father 63
2. Karima Bibi Mother 55
3. Shehnaz Wife 19

2. It is honestly requested that oblige me with a “Free Medical Treatment

Certificate”, please.

(Yours Faithfully)

Qasim Ali, Bearer

Lahore High Court, Lahore.
09.03.2018