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Sunday, November 15, 2009

Pakistani Courts and their Defects

Sunday, November 15, 2009 - 1 Comment

The function of the police is to apprehend charge and arrest the criminals and suspects. To evaluate the evidence presented before it and to decide about the guilt of the accused and to award them the punishment relative to their offence is the task of the law courts. The courts have to decide the cases and their decisions and strictly determined by the evidence brought before it by the police. Thus we find there is intimate link between court and police. The function of the two is complementary to each other.
The Indian Judiciary operates at four levels, these are hierarchical. They are:
(1) Local Courts
(2) District Courts
(3) High Courts
(4) Supreme Courts

(1) Local Courts – These are the lowest courts which are competent to give punishment and impose fines for petty cases.

(2) District Courts – These courts are higher than the local courts and appeals against the decisions of the local courts are heard by them. Serious cases come before it directly and these courts are presided over by the District judge.

(3) High Courts – In each state there is one high Court presided by the Chief Justice and having as many judges as there are courts of appeal and also take up cases directly. Mostly they are engaged in deciding the cases in which an appeal is made against the decision of the lower court. High courts are competent to issue writ. In certain cases their verdict is final but in other appeals can be made to Supreme Court against their decisions.

(4) Supreme Courts – This is the Highest Court of the country and it is a court of appeal and record. It has a chief Justice and about 15 judges. They are the men of highest judicial competence. This court hears appeals and also takes up certain cases direct. The decision of the Supreme Court can not be challenged if it has been handed down by the full bench.

Defects of Indian Judiciary
The Pakistani Judiciary is the gift of the British. The British had a policy and the judiciary mirrored. It but with the changed times this system is showing its deficiency. It needs overhaul in the light of modern conditions and needs.

Main Principles of the Origin of Criminal Law

In modern times the law regarding crimes is clear and well defined; there is no element of ambiguity in it. However, this was not so in the olden days; therefore, the question that naturally crops up for consideration is how did criminal law originate the develop. As a matter of fact there is no particular event which accounts for the origin of the criminal law. Regarding the origin and development of the criminal law there is no recorded history; only there are different opinions and guesses in this regard. Due to this variety of views regarding the origin of the criminal law, there have come up various schools of thought. Following are the main viewpoints or schools of thought about the origin of Criminal Law.

(1) Classical Theory – According to Classical Theory the origin of criminal law is in the conception of tort. A tort is different from crime because whereas the crime is a dispute between the individual and the state, the tort is a dispute between individual and individual. In ancient times when an individual felt that his rights were infringed, he would make personal effort to settle the matters and try for compensation. Later on, with the development of the collective consciousness, people started calling these acts as crimes against the community and gradually things came to a pass when rules were formed which formally declared these acts criminal and thus was the criminal law born.
The classical theory may have some valid points but it fails to account for many facts. As Sutherland very aptly points out, “This theory is inadequate, however, as a general or universal explanation of the criminal law”. This theory has over-emphasized the individual and tired to find the origin of collective consciousness through individual consciousness; but there cannot be individual consciousness without the social consciousness because the idea of individual follows rather than precedes the collective.

(2) Crystallization of Mores – According to this theory the criminal law has had its origin in the customs and mores of the yore. In order to appreciate this theory it is essential to under stand the meaning of the term custom. The custom is an accepted response to certain definite social situation. These customs develop gradually and keep modifying in response to altered situations. Man is a creature of habit. Men living in a particular social situation develop certain common habits. It is these common habits which alter on take the form of customs. When the idea of social welfare gets attached to the customs these are called mores or traditions. Thus the traditions when they develop, become all embracing and society is concerned about their break and observance. Any breach is looked upon seriously. Their break arouses social resistance and leads to disapproval by the society of these violations and boycott of the person, violating them. The social disapproval and resistance gradually crystallize into criminal laws. The criminal law naturally includes in it the idea of punishment.

The term which traces the development of criminal law in social customs and traditions is a definite improvement upon the classical theory and has great deal of truth in it. However, it can not be considered to be adequate explanation of the origin of criminal law. The modern penal system is definitely a great advance on the customs and these can not offer any explanation of modern industrial laws.

(3) Rational Theory – According to the rational theory the criminal law took its origin from certain ideas of great and original thinkers. In every society, in every crime and at all times there have been some thinkers who have probed deeply with the acuity and sharpness of their intellect in the life of their times. Their penetration into its depth has revealed to them in sudden flashes some striking original ideals which have proved seminal and ushered in revolutionary changes in the society. It is to these thinkers that the society owes the development of criminal. This theory has an element of truth but like the Hero Theory of history it is lopsided.

(4) Conflict of Interests Theory – According to this theory the new ideas are born of the conflicts of interests among different classes. Every society is divided into different classes and there is no conflict of interest among classes. The class which is able to gain dominance declares the activity of other classes as antisocial and therefore criminal. The people who are in control of power want the status quo to continue and whatever is calculated to under mine the status quo is declared criminal. This is a version of Marxian theory and like the general theory of Marx it is one sided.

Criminal Law and its Chief Elements

In the science of Criminology, it is very essential to study the criminal law. Besides, no adequate understanding of the crime or the criminal is possible without having a prior under standing of the criminal law. This will be appreciated if we remind ourselves that the meaning and scope of crime is determined and guided by the constitution of the criminal law. Nude dancing or even sexual intercourse in cinema and theatre does not constitute crime in many European countries, while it is definitely criminal in India. Thus what is crime or not crime is governed by the criminal law of the land. There are so many acts which may be regarded immoral and perverse but are perfectly normal and constitute non cognizable offences. For example, copulation of some one with his secretary will be regarded immoral by many; yet it constitutes no crime. If an adult woman is forcibly raped but in court of law she declares it was through her consent, there is nothing criminal. Thus we can appreciate the intimate connection between criminal law and the crime. What Shakespeare said about good and bad: there is nothing good or bad only thinking makes it so-applies, mutatis mutandis to crime and criminal law. There is nothing criminal except what the criminal law declares it to be.

Definition of Criminal Law

According to Sutherland, “The criminal law is a body of specific rules regarding human conduct which have been promulgated by political authority, which apply uniformly to all members of the classes to which the rules refer, and which are enforced by punishment administered by the state”.

Essential Features of Criminal Law

The criminal laws are different from other laws. Some laws are determined by the customs and traditions of the society, community, family or group. Indeed, these laws are rules and cannot be said to be law in the regular sense of the term. The criminal laws are of some special type and pertain to the individuals in a particular field of activity. The laws have dual aspect: one is theoretical and the other is the practical. The theoretical aspect is concerned with the laws passed by various legislative assemblies, provincial and central. The legislative assemblies formulate, legislate, amend and repeal these laws. The practical aspect is concerned with police and law courts. Their function is executive and judicial. The function of the police is the implementation of the law and the maintenance of law and order. The function of the courts is to decide what is criminal according to law and to decide the amount of punishment due to particular act. Following are the main elements of the criminal law:

(1) Political Authority,
(2) Uniformity and Regularity,
(3) Specificity,
(4) Enforcement and Punishment

(1) Political Authority – Every law must have the backing of political authority: and the criminal law is no exception to this general rule. Without political authority there can be no conception of the criminal. The political authority, as expressed in the forms of legislative bodies, is responsible for formulating the law and getting it the requisite sanction of the political authority, that is, getting it passed in the legislature houses and thus making it a law or an act which would have the force recognized by the executive and judicial authorities.
There may however be certain societies where the political authority is concentrated in one person as in the case of monarchy or dictatorship. In tribal societies this authority lies with the tribal chief.

(2) Uniformity and Regularity – An ideal law must have a uniform application to citizens and should make no distinction based on sex, caste, creed, status or religion. If a law makes such distinctions it is not a law but a whim.

(3) Specificity – The criminal law pertains only to a field of activity which may be said to be limited to violations or transgressions of the law. The criminal law is not about observance but break of law. Thus it is limited to a specific field.

(4) Enforcement and Penalty – Now law is worth the paper on which it is transcribed if there is no authority to enforce it and no authority to punish its violation. This means that besides legislative aspect, the law must also have executive and judicial aspects as well. According to Jhering, “A legal rule without coercion is a fire that does not burn, a light that does not shine”.

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