ENGLISH JURISPRUD

PREPARED BY: FATIMA TUL ZAHIRA

Course Contents:
1. The Science of Jurisprudence as a subject:
(a) Meanings
(b) Definition
(c) Kinds of Jurisprudence
(d) Relation of Jurisprudence with other Social Sciences.
2. The Nature of Law.
3. The Administration of Justice and State
4. The Sources of Law
5. Legislation
6. Precedent
7. Custom
8. Legal Rights
9. Ownership
10. Possession
11. Persons
12. Titles
13. Liability, Intention and Negligence
14. The Law of Property
15. The Law of Obligation
16. Substantive Law & the Law of Procedure
17. The Theory of Sovereignty, the territory of the State.

1
Q NO 1 WHAT IS JURISPRUDENCE AND ITS NATURE? DISCUSS IN DETAIL
VARIOUS KINDS OF JURISPRUDENCE AND DISCUSS THE SCOPE OF
JURISPRUDENCE.

INTRODUCTION:
Where there is a systemize branch of knowledge its science comes into existence, since law is a
systemized branch of knowledge, it is a science. The name of the science is Jurisprudence.
Jurisprudence is the study of law and its principles. It helps us understand the reasons behind
laws and how they shape societies. The study of jurisprudence started with the Romans. The
definitions given by the Roman jurists are vague and inadequate. Jurisprudence in its nature is
entirely a difference subject from other social sciences. The reason for this is that it is not
codified but a growing and subject. The jurisprudence has no limited scope being a growing
subject. Jurisprudence is the name given to a certain type of investigation into law. Jurisprudence
can be described as the wisdom, knowledge or the mind of law. Without adequate knowledge of
jurisprudence, no perfect interpretation of law can be made. In fact, process of law making
encompass many steps for inclusion of jurisprudence in order to keep legislation within required
perspective.
“Jurisprudence is as big as law - and bigger”

2. LITERAL MEANING:
The word jurisprudence is derived from the Latin word “jurisprudentia” which means
“knowledge of law”- “Juris” means law and “prudentia” means skill or knowledge. Thus,
jurisprudence signifies knowledge of law and its application.

3. DEFINTIONS:
a) According to Salmond:
“Jurisprudence is the science of Law.”

b) According to Austin:
“Jurisprudence as the Philosophy of Positive law.”

2
c) According to Dicey:
“Jurisprudence as a particular method of study not of law of one country but general nations of
law itself.”

4. DERIVATION:

JURSISPRUDENCE

JURISPRUDENTIA ((DERIVED FROM TWO LATIN WORDS)

JURIS PRUDENTIA

LAW SKILL / KNOWLEDGE

KNOWLEDGE OR SKILL OF LAW

5. NATURE OF JURISPRUDENCE:
There is difference of opinion about the nature of jurisprudence. It is called both art and science.
But to call it science would be more proper and useful. The reasons for this are that just as in
science we draw conclusions after making a systematic study by investing new methods. It is

3
non- binding in nature. It is also dynamic in nature. It consists of different views later on called
the school of jurisprudence.

6. CONTENTS OF JURISPRUDENCE:
The following are the contents of jurisprudence:
(a) Sources: It is true that the basic features of a legal system are mainly to be found in its
authoritative sources. Under this head matters such as custom, legislation, precedent as a source
of law, prose and cone of codification of laws, methods of judicial interpretation and reasoning,
an inquiry into the administration of justice etc., are included for study
(b) Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights, title,
property, ownership, possession, obligations, acts, negligence, legal personality and related
issues.
(c) Legal theory: Legal theory is concerned with law as it exists and functions in the society. It
is therefore necessary that while analyzing legal concepts, and effort should be made to present
them in the background of social developments and changing economic and political attitudes.

7. IMPORTANCE OF JURISPRUDENCE:
Jurisprudence is important because it helps us understand the meaning, purpose, and
development of law. It explains legal concepts, principles, and their impact on society. It also
helps lawmakers create fair laws, guides judges in interpreting laws, and teaches students the
philosophy behind legal systems. By studying jurisprudence, we can improve justice, protect
rights, and ensure laws evolve with changing social needs.

(a) Remove the complexities of law:

One of the tasks of jurisprudence is to construct concepts and make law more manageable
and rational.
(b) Answers the new problems:
Jurisprudence can teach people to look around them and realize that answers to new legal
problems must be found by a consideration of the present social needs and not in the
wisdom of the past.
(c) Grammar of Law:

4
Jurisprudence is the grammar of law. It throws light on the basic ideas and the
fundamental principles of law e.g., negligence, liability etc.
(d) Great educational value:
Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps in knowing and
grasping the language, grammar, the basis of treatment and assumption upon which subject
rests.
(e) Useful in Art of pleading and legislation:
It helps legislators and the lawyer the proper use of legal terminology. It relieves them of
the botheration creation of defining again and again certain expressions e.g., right, duty etc.
(f) To Interpret law:
It helps the judges and the lawyers in ascertaining the true meanings of the law passed by
the legislatures by providing the rules of interpretation.
(g) To study foreign law:
It enables a lawyer to study foreign law because the fundamental principal is generally
common to all systems of law.
(h) Importance under the light of different jurists:
By Dr. M.J Sethna: The value of jurisprudence lies in examining the consequences of law and
its administration on social welfare and suggesting changes for
the betterment of the superstructure of laws

8. KINDS OF JURISPRUDENCE
Following are the most important kinds of the Jurisprudence.
 ANALYTICAL JURISPRUDENCE:

✔ General Viewpoint:
Analytical jurisprudence, which is also known as the positive School of law or positivism law or
Austanian school of law. The exponents of this school of thought considered law as it exists in
the present form without looking at past. According this school of law most important aspect of
law is its relation with state.

5
✔ Main Exponents:
 John Austin
 Jeremy Bentham
 Holland
Characteristics:
 EXISTING CIVILIAN:
The analytical jurisprudence deals with the basic principles of existing civil laws.

 IGNORE THE HISTORICAL AND ETHICAL ASPECTS:

Another key characteristic is legal positivism, is that it ignores the historical and ethical aspect of
law and focusses on the present form of law.

✔ Criticism:
Analytical jurisprudence by Austin is criticized for being too rigid and simplistic. Critics argue it
fails to account for moral considerations and the complexities of real-life legal systems.

 HISTORICAL JURISPRUDENCE:
✔ General Point of View:
Montesquieu and Savigny believed that understanding laws requires looking at history, society,
and culture. Laws are not just rules; they’re shaped by the unique situations of a place and time.

Main Exponents:
 Montesquieu
 Savigny

Characteristics:
 Focus on History: Historical jurisprudence studies the development of laws over time. It
looks at how laws have evolved based on historical events, traditions, and societal
changes.

6
  Cultural Influence: This approach emphasizes the influence of a society's culture,
customs, and traditions on the development of its legal system.

Criticism:
Some people say historical jurisprudence can be a problem because it might make us stick too
much to the past, slowing down changes and improvements in the law.

 ETHICAL JURISPRUDENCE:

General View:
Ethical jurisprudence, as presented by Hugo Grotius and Hegel, revolves around the idea that
how the laws ought to be in an ideal state but not as they are or had been in the past. The
advocates of this school focused on ethical principles as the base of laws.

Main Exponents:
 Hugo Grotius
 Hegel

Characteristics:
 IDEAL STATE
The ethical jurisprudence aims to have laws as it ought to be in an ideal state.

 ACHIEVEMENT OF JUSTICE:
The aim of this school of thought is to shape the laws in such a manner by which achievement of
justice be achieved.

Criticism:
Criticism of the ethical school of thought in law highlights its dependence on moral values,
which can differ from person to person and between cultures, making it less objective.

 Philosophical Jurisprudence:

7
General View:
Philosophical jurisprudence deals with the philosophy of law. It deals with the nature of law and
why law is necessary for the modern society. This school isn't concerned with what the law was
in past and what it is in the present but the aim of this school is to develop the idea of justice.

Main Exponents:
 Ronald Dworkin
 H.L.A. Hart

Characteristics:
 Explores Fundamental Questions:
Philosophical jurisprudence examines deep, fundamental questions about the nature of law, such
as "What is law?" and "What makes laws valid?"
 Analyzes Moral Principles: It looks at the moral and ethical principles underlying laws,
asking whether laws are just and how they should be applied in a fair and equitable
manner.

Criticism:
Philosophical jurisprudence is criticized for being too abstract and theoretical, focusing on ideas
rather than practical solutions, making it seem irrelevant to everyday legal problems and real-
world legal practice.

 Sociological Jurisprudence:

General View:
The sociological school of thought deals with concept relationship of law and sociology. Law
understands the society according to its needs and its relationship with society.

Main Exponents:
 August Comte
 Duguit

8
Characteristics:
 Focus on Society:
The sociological school of thought emphasizes understanding how society and social
interactions shape human behavior.
 Study of Social Structures:
It examines the roles and functions of various social institutions, like family, education, and
government, in influencing people's lives.

Criticism:
Criticism of sociology questions how well it understands society. Some say it's too simple and
doesn't listen to everyone, making it less helpful in making things fairer.

9. SCOPE OF JURISPRUDENCE:
According to justice [Link]:
Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man
in society. It includes political, social, economic and cultural ideas. It covers that study of man in
relation to state and society.”
According to Redcliff:
Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a
philosophy of life.

I. Early Period: Law Based on Customs and Traditions

In the early period, laws were unwritten and based on customs, traditions and religious beliefs.
People followed rules passed down through generations, and justice was often delivered by tribal
leaders or religious figures.

Example: The Code of Hammurabi (1750 BC) in Babylon, which had strict punishments based
on the principle of "an eye for an eye."

II. Austrian Period: Law as a Command of the Sovereign

9
During the 19th century, British philosopher John Austin introduced the idea that law is a
command given by the sovereign (ruler or government) and must be obeyed. He argued that
morality should not influence the law, and only the rules made by legitimate authorities should
be considered legal.

Example: Constitutional laws made by governments, such as the U.S. Constitution or the Indian
Penal Code, which are enforced by the state.

III. Modern Period: Law as a Tool for Social Justice

In the modern period, law is seen as a way to promote justice, economic progress, and human
rights. It is influenced by ethics, culture, and social changes. The law is no longer just about
punishment but also about protecting people's rights and improving society.

Example: Human rights laws, such as anti-discrimination laws that protect minorities, labor laws
ensuring fair wages, and environmental laws to fight climate change.

10. Conclusion:
Jurisprudence is the study of law, examining its nature, principles, and philosophy. There are
different kinds of school of thoughts of jurisprudence. These school of thoughts elaborate or
explain the jurisprudence in their own manners.

Q NO 2 Define Jurisprudence. Explain its relationship with other social sciences?

1. INTRODUCTION:
Jurisprudence is the study of law and its principles. It helps us understand the reasons behind
laws and how they shape societies.
Jurisprudence is ‘the Eyes of Law.’ In the human body, the eyes are one of its most essential
parts. Most of the human activities and movements of a man’s body are possible only through
them. Unless a man can see anything correctly, he can’t do any work properly. Jurisprudence is
called the ‘the eye of law’ because jurisprudence functions for law like eyes do for the human
body.

10
For example: It is a difficult task to interpret the law. Students and even lawyers sometimes fail
to reach to the intention of the legislature while interpreting the law. This is where jurisprudence
assists them and makes decoding the law easy.

2. MEANING OF JURISPRUDENCE:
Literal Meaning:
"The word Jurisprudence is the combination of two words juris means "law" and prudence
means knowledge so Jurisprudence means the study of law."

3. DEFINITION OF JURISPRUDENCE:
According to Salmond:
"Jurisprudence is the science of Law."
According to Austin:
"Jurisprudence as the Philosophy of Positive law."

4. IS JURISPRUDENCE A PURE SCIENCE OR NOT:

Many authors and jurists came in the timeline, and everyone gave different opinions or views
regarding the nature of jurisprudence. It is called both art and science. But to call it or prove it to
be science is more appropriate. The reason for this is that, in science, we draw conclusions after
doing a systematic and logical study by applying new methods and techniques. Similarly,
jurisprudence is concerned with the fundamental principles of law, and thus calling it science is a
bit more suitable.
Jurisprudence is not a pure science like physics or chemistry because it studies laws, society, and
human behavior, which change over time. However, it is a social science that helps in
understanding legal principles and justice.
Example: Laws about women's rights have changed over time, unlike scientific laws like gravity,
which remain the same. Similarly, cyber laws were created recently because of technology,
showing that jurisprudence evolves with society.

5. RELATIONSHIP OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES:

Jurisprudence is a social science; social science is the study of society or knowledge of the
conduct and behavior of human beings in society. Individuals and society are interdependent and

11
strongly related. In the same way that a society cannot exist without its members, neither can an
individual. The behavior of an individual toward society and his fellow humans is governed by
some well-known rules and principles, which is why rules are also known as laws. If there is no
man, there is no society, and when there is no law, there is no law. The state is a sophistically
ordered society, and its rules or laws regulate how men behave with respect to one another and
the state.
We can say that jurisprudence is a social science because it studies how man interacts with
society and his fellow humans insofar as those interactions are governed by law. Jurisprudence is
the study of the first principle of law, and since the law is for humans and society, jurisprudence
is a social science.
Jurisprudence is studying law, law is regulating the conduct of individuals and individuals are
living and forming societies. Therefore, law is an important social phenomenon which is making
jurisprudence as a Social Science. However, there are several other Social Science, like Ethics,
Political Science, Sociology, Psychology etc. Now, it is logical that these social sciences should
be interlinked with each other at some point.

WHAT IS A SOCIAL SCIENCE?

The study of society and the manner in which people behave and influence the world around us.

 Relationship with Sociology:

Sociology studies how people live together in societies. It looks at how people interact and how
societies change.

Relationship: Jurisprudence and sociology are connected because laws are made for society.
Sociology studies how people live, and jurisprudence creates laws to maintain order, solve social
problems, and ensure justice.

Example: In Pakistan, child labor laws show the link between sociology and jurisprudence.
Since poverty forces children to work, laws were made to protect them, ensuring they get
education instead of being exploited.

 Relationship with Psychology:

Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is discussing law. Law
is aimed to be followed by individuals, and individuals can only follow law if they intend to
follow. Therefore, intention is the very basic element behind every law, and particularly in

12
criminal law. Jurisprudence and psychology are related because laws deal with human thoughts
and actions. Psychology helps understand why people commit crimes and how to make fair laws
for society.

Relationship: Jurisprudence deals with the study of law, while psychology explores how laws
will affect the human behavior.
Example: In Pakistan, laws on mental health show the link between jurisprudence and
psychology. The Mental Health Act ensures that people with mental illnesses get proper
treatment instead of being punished for their actions.

 Relationship with Political Science:

Political Science looks at how states are governed and how governments work. Laws are
created through political processes. And jurisprudence is about the study of Law.

Relationship: Jurisprudence deals with study of law, while politics involves the governance and
organization of societies. Both are connected in a way that no government or state can think of
its existence without laws.

Example: The Constitution of Pakistan is a result of both political science and jurisprudence.
Political science studies how governments work, while jurisprudence helps in making and
interpreting laws that protect citizens' rights and maintain order in society.

 Relationship with Economics:

Economics studies how goods and services are produced, distributed, and consumed.

Relationship: Jurisprudence focuses on study of law, while economics studies the production
and distribution of resources. The connection between both lies in understanding how legal
frameworks impact economic systems. Economics studies the production and distribution of
wealth and law is responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing rate of criminal
activities, which again brings the two in close relation with each other. Furthermore, economics
aims at improvement of the standards of human lives whereas, this could not possible if a
peaceful environment is not available which is possible through the application of laws.
Therefore, there is a close relationship between the two.

13
Example: In Pakistan, tax laws show the relationship between economy and jurisprudence. The
government imposes income tax and sales tax to generate revenue, which is then used for public
services like roads, schools, and hospitals, impacting the country's economy.

Relationship with History:

History and jurisprudence are connected because laws develop over time based on past events
and social changes. Studying history helps understand how legal systems evolved and how past
laws shaped today's justice system.
Relationship: Jurisprudence looks at the philosophy of law, while history examines past events.
Both are connected with each other as the jurisprudence considers the historical development of
law. Law has not come into existence overnight, as a matter of fact, it has developed through
ages. History helps jurisprudence in digging out the origin and evolution of different legal rules.

Example: Human rights laws have evolved over time. Historian's study important documents
like the Magna Carta. Jurisprudence uses this historical knowledge to shape modern human
rights laws.

 Relationship with Anthropology:

Jurisprudence and anthropology are linked because laws are based on human cultures, traditions,
and societies. Anthropology studies how people live, and jurisprudence helps create laws that fit
different cultural and social needs.

Relationship: Jurisprudence is concerned with the study of law, while the anthropology studies
human cultures and their development. Both are connected with other as jurisprudence uses
culture and customs as most important source of law.

Example: In Pakistan, laws about marriage and inheritance are influenced by cultural traditions
and anthropology. For example, Islamic inheritance laws ensure fair property distribution based
on social customs and religious practices followed in Pakistani society.

 Relationship with ethics:

Ethics is the science of human conduct. It projects an ideal human behavior, in the light of which
it suggests a course of conduct for individuals living in societies. Whereas, jurisprudence is
discussing the imperative rules, actually existing in the societies. However, those rules are also
connected with the behavior of human beings in societies. Therefore, both of the science are
14
interrelated. Due to the close relationship and interdependency of these sciences, there emerged a
branch of jurisprudence known as Ethical Jurisprudence, discussing the ideal human behavior or
which is the study of law as it ought to be.

7. CONCLUSION:
To conclude I can say that English Jurisprudence is connected with other social sciences, each
offering important insights. By looking at these connections with simple examples, we can better
understand how laws are made, applied, and interpreted in society.

Q NO 3 Define law, explain its various kinds and discuss the advantages and
disadvantages of fixed rules of law?
[Link]:
It is easier to explain the terms rather define them, the same is the case with law. Various schools
of law have defined the law from different angles. Some have defined based on nature; some
define it in the terms of its effect on society and others define law in terms of the end or purpose
of the law.. Law is like a set of rules made by leaders to keep things fair and peaceful. Fixed
rules, or always-the-same rules, help everyone know what to expect. This makes things stable
and fair. But sometimes, these rules might not fit every situation, causing problems. So, having
rules that are both firm and a bit flexible is important for making sure everything is fair and
square.

2. MEANING OF LAW:
The word law is derived from Lag which means that something lay down or fixed.
Law means a rule or set of rules.
According to Merriam Webster’s Dictionary law means; a rule of conduct or action
prescribed, formally recognized as binding, and enforced by a controlling authority.

3. DERIVATION:
The word “Law” is derived from a “Latin” word, “LAG” which means “something laid down or
fixed”.
Law➡ LAG (Latin) ➡ to limit/ to resist (fixed)

15
4. DEFINITIONS OF LAW:
Here are some definitions of law by different jurists:
According to Salmond:
"Law is the body of principles recognized and applied by the state in the administration of
justice."
According to Austin:
Law is the command of the sovereign, given to the inferior, and backed by sanctions.

5. NATURE OF LAW:
i. Certain
ii. Dynamic
iii. Peaceful
iv. Universal
v. Backed By Sanctions
vi. State Controlled
vii. Equality
viii. Supremacy
ix. Respect For Law
x. Moral
xi. Ethical

6. SOURCE OF LAW:
i. Usage and customs.
ii. Legislation.
iii. Precedents.
iv. Agreements.

7. EXAMPLE IN PAKISTAN:
Civil law constitution of Pakistan 1973
16
Divine law: Islamic laws

8. TYPES OF LAW:
Here are the major types of law with explanations and examples:

I. Public Law
This type of law deals with rules that affect society as a whole. It regulates the relationship
between individuals and the environment. It is relevant to criminal law (punishment for crimes),
constitutes criminal law (government structure and citizens' rights), and administrative law
(government agencies' rules).
Example: A law that punishes theft or regulates elections to ensure fair voting.

II. Common Law

Common law is based on past court decisions and general legal principles rather than written
statutes. It evolves over time as judges make rulings in different cases. It applies to many areas,
such as contracts, property disputes, and personal injury cases.
Example: If a court rules that landlords must return security deposits in a fair manner, future
cases follow the same principle.

III. Civil Law

Civil law handles disputes between individuals or organizations rather than crimes against
society. It covers family issues, contracts, and property ownership. Unlike criminal law, it
focuses on compensation rather than punishment.
Example: A couple filing for divorce or a person suing another for damage to their property.

IV. Specialized Law

This law focuses on specific industries, professions, or areas of society. It includes laws related
to the environment, healthcare, technology, and intellectual property. These laws ensure fairness,
safety, and ethical conduct in specialized fields.
Example: Environmental laws that limit pollution from factories or data privacy laws that protect
online users' information.

17
V. Fundamental Law
Fundamental law, also known as constitutional law, is the highest law of a country. It sets the
framework for government operations and citizens' rights. It determines the structure of the
government, separation of powers, and basic freedoms of individuals.
Example: A country's constitution that guarantees freedom of speech and equality before the law.

These different types of laws help maintain order, protect rights, and ensure justice in society.

Perfect And Imperfect Rights:

Perfect rights are the rights that are recognized and fully enforced by the law.
Imperfect rights are the rights that are recognized by the law but are not fully enforceable.
ii. Legal And Equitable Rights:
Legal rights are the rights that are created and recognized by the legislature.
Equitable rights are the rights that are recognized and created by the common law courts.
iii. Public And Private Rights:
The rights which apply to the public at large are called public rights.
The rights which deal with the private relationship between the individuals are called private
rights.
iv. National And International Rights:
The rights which are given by the constitution of a particular nation/state are called national
rights.
The rights which are given by international law are called international rights.
v. Primary And Secondary Rights:
The rights which are conferred by the substantive law are called primary rights.
The rights which are conferred by the procedural law are called secondary rights.
vi. Positive And Negative Rights:
A positive right is a right for the benefit of a person.
A right not to be in harm, but to stop individuals from anything is called a negative right.
vii. Rights In Re-Propria And Re-Aliena:
Right or any easement in full ownership of our property is called right in Repropria.

18
Right or easement over any other’s property is called the right in Re-Aliena.
viii. Vested And Contingent Rights:
The right which depends upon the happening of a certain event is vested.
The right which depends upon the happening of uncertain events is called contingent right.
ix. Real And Personal Rights:
Real rights are the rights that are exercisable against the world at large.
Personal rights are the rights that a person has over his own body.
x. Inheritable And Uninheritable Right:
The right which survives with its owner is called an inheritable right.
The right which dies with its owner is called an uninheritable right.

9. RULE OF LAW
Rule of law is the modern term for the empowerment of laws, that all citizens and institutions
within a country, state, or community are accountable to the same laws.
This doctrine was given by A.V Dicey and is based on three basic principles:
 Equality Before the Law
 Supremacy of Law
 Respect to Judicial Precedents
“Rule of Law is the live-wire of every successive democratic society.”
[K. Usender]

10. DERIVATION OF RULE OF LAW:

The term “Rule of Law” is derived from a French phrase, “La principle de legalite” which
means that; government should be based on the principle of laws.

Rule of law means command or proper control of the law.

Rule of law
⬇
Command of law

19
11. CASE LAWS:
 Brown Vs Board of Education 1954
There is the best example of rule of law according to this case law “Discrimination is not
allowed by law”.
 Imran Khan Niazi Vs Mian Nawaz Sharif 2017
This case law is the present example of rule of law according to the decision of the Supreme
Court of Pakistan, “there is no man above the law”

12. Magna Carta: (1215)

Magna Carta was a great charter(agreement) between people and the King John of England. It
was the first formal agreement that limits the power of the king. Magna Carta was the start of
English legal history.

13. ADVANTAGES AND DISADVANTAGES OF FIXED RULE OF LAW:

✓ Advantages of Fixed Rules of Law:

i. Consistency: Fixed rules ensure that laws remain the same over time, so everyone knows what
to expect. This creates order in society.
Example: If traffic laws say that the speed limit is 60 km/h, it stays the same, so drivers don't get
confused about changing rules.

ii. Predictability: Since laws do not change suddenly, people can understand the consequences
of their actions and follow the rules more easily.
Example: If stealing is a crime and leads to jail time, people will think twice before stealing
because they know the punishment.

iii. Fairness and Equality: The same laws apply to everyone, no matter if they are rich, poor,
famous, or unknown. This prevents discrimination in legal matters.
Example: If two people break the same law, they receive the same punishment, whether they are
a celebrity or an ordinary person.

20
iv. Stability and Security: A stable legal system gives people confidence that their rights will be
protected and that laws will not change randomly.
Example: If a person buys land legally, they can be sure that no one can take it away from them
unfairly.

v. Protection of Rights: Fixed laws protect the basic rights of people, such as freedom of
speech, religion, and privacy, so governments cannot take them away easily.
Example: If freedom of speech is a law, people can express their opinions without fear of being
punished.

vi. Efficient Law Enforcement: When laws are clear and fixed, police officers, judges, and
lawyers can apply them quickly and fairly without confusion.
Example: If the law says that driving without a license leads to a fine, police officers can enforce
this law easily without needing new rules.

✗ Disadvantages of Fixed Rules of Law:

i. Rigidity: Fixed laws do not easily change with time, making it hard to solve new problems in
society.
Example: A law made 50 years ago about newspapers may not work for online news websites
today.

ii. Lack of Flexibility: Some situations require special exceptions, but fixed laws do not allow
for adjustments based on specific circumstances.
Example: A person who steals food because they are starving may receive the same punishment
as someone who steals for profit.

iii. Complexity: As societies grow and change, fixed laws can become difficult for ordinary
people to understand, making legal matters complicated.
Example: A small shop owner may struggle to understand tax laws because they are written in
difficult legal language.

21
iv. Unintended Consequences: Some laws may have side effects that were not expected when
they were made.
Example: A strict law to control noise pollution may also prevent emergency announcements in
public places.

v. Slow Legal Reforms: Changing or updating old laws takes a long time, which can delay
necessary improvements in the legal system.
Example: Many countries took years to legalize digital signatures, which caused problems for
businesses working online.

vi. Potential for Injustice: Fixed laws may not always be fair in every situation because they do
not consider special cases.
Example: If a person accidentally enters a restricted area without knowing, they might still get
punished under a fixed law, even though it was a mistake.

14. CONCLUSION
Law is a set of rules established by a society to regulate behavior and maintain order. Fixed rules
of law provide clarity, consistency, and fairness. Advantages include predictability and equal
treatment. However, disadvantages may arise when laws become outdated or fail to address
unique cases. In short, fixed rules offer stability but may lack flexibility.

“Law is hard, but it is the law.”

[C. Clare]

Q NO 4 Explain the origin and necessity of "Administration of justice"? Also discuss

various kinds of justice?

1. INTRODUCTION:
The "Administration of Justice" is the core function of the state, the purpose of which is to
resolve conflicts fairly. It ensures order by providing a structured system for dispute resolution.
This is the primary function of state if a state failed to provide administration of justice cannot be
considered as a state. The administration of justice is passed through three stages.

22
2. MEANING OF JUSTICE:
According to Black's Law Dictionary:
"The fair and proper administration of law."
According to Oxford Dictionary of Law:
"A moral ideal that law seeks to uphold in the protection of rights and punishment of wrongs."

3. MEANING OF ADMINISTRATION OF JUSTICE:

According to Black's Law Dictionary:
"The maintenance of rights within political community by means of the physical force of the
state."

4. DEFINITION OF ADMINISTRATION OF JUSTICE:

According to Salmond:
"The process of maintaining justice within a political community by means of physical force of
the state."
According to Lord Bryce's
"There is no batter test of the excellence of a government than efficiency of its judicial system."

5. ORIGIN OF ADMINISTRATION OF JUSTICE: -

Administration of justice has been historically originated along with the growth of
man the social nature of man demanded the origin of administration of justice.

6. STAGES OF ORIGIN OF ADMINISTRATION OF JUSTICE: -

According to John Salmond.

Following are three stages of administration of justice:
i. First stage of Origin.

23
ii. Second stage of Origin.
iii. Third stage of Origin

Private or First Stage:

In the earliest societies, people resolved disputes privately without formal laws. Justice was
based on personal agreements, customs, or the decisions of tribal leaders. At first stage the
Society was primitive and private vengeance was allowed at the time. Every individual has to
help himself to punish the wrong doer. At this stage self help was the only remedy available to
an individual.
Example: In tribal communities, if someone stole an animal, the victim's family might demand
compensation or take revenge.
 Life at this stage:
At this stage every man carried his life in his own hands he was supposed to be
attacked by his enemies at any time.
 Basis of this stage:
Every man was judge in his own cause and might was the sole measure of right.
 Disadvantages of first stage
a. No guarantee that criminal would certainly be punished
b. No guarantee of proportion to the gravity of crime
c. One crime leads to another crime

Transitional or Second Stage:

As societies grew, the state introduced rules to regulate justice. Laws became more structured,
and punishments were based on set principles like retribution. There was rise of political states in
society. But these States were not strong enough to regulate crime and inflict punishments on the
criminals. The law of private vengeance was still continued and the states only prescribe some
rules for the regulation of private vengeance
Example: The Code of Hammurabi (Babylon, 1754 BCE) followed the rule of "an eye for an
eye," meaning punishments directly matched the crime.

 Basis of this stage:

This stage was based on the concept of:

24
i. Tooth for a tooth
ii. Eye for an eye
iii. Life for life
The state prescribed that a life shall not be taken for a tooth or for an eye.
 Abolishment of vengeance:
Vengeance was not totally abolished in the Anglo-Saxon period in England but was
merely restricted and regulated.

Final or Third Stage:

The state took full control of justice, creating courts, judges, and legal systems to ensure order
and fairness. Laws were written and applied equally to all citizens. At the third stage the states
started to act as a judge to assess liability to impose penalty. Private Justice was transformed into
public justice. And administration was given in the hands of states.
Example: Ancient Rome's Twelve Tables (451 BCE) established written laws that governed
contracts, property, and family matters.

Modern Era:
Today, justice is administered by courts, judges, and magistrates following legal procedures.
Example: In modern democracies, courts handle cases based on laws, such as the Supreme Court
of the United States interpreting the Constitution to make fair rulings.

7. NECESSITY OF ADMINISTRATION OF JUSTICE:

Justice is crucial because it ensures fairness, protects people from harm, and maintains order in
society. It builds trust, promotes equality, and provides a peaceful way to resolve conflicts.
Overall, justice is essential for a balanced and harmonious community.

Maintaining Order: Administration of justice is important for maintaining a peaceful society. It

ensures that rules are followed, where people can live and work without fear.
Protecting Rights: Justice systems are essential for safeguarding individual rights and freedoms.
Resolving Disputes: Courts play a vital role in settling disagreements fairly. Through a legal
process, individuals can present their cases, and decisions are made impartially.
Want of judicial system:

25
The society traditionally required a judicially system to give solutions to conflicts
between individuals.
One uniform system:
Mankind can only regulate by one uniform system and it was the reason which gave rise to
administration of justice.
Man is a social animal:
Man being a social and fighting animal requires a strong system of administration of justice.
Control of one authority:
A common power to keep them all in the line was primitive requirement of society and it was
possible through administration of justice.
Might is right:
Might is right is the social norm of the society and it forces the man to seek administration of
justice.
Increasing in population:
Increase in the world population was a threatening factor which lead the humanity to think for
administration of justice.
Social sanction:
Social sanction with a fluctuating and discriminatory punishment requires a strong system of
administration of justice.
Instability in society:
Instability in social structure was a reason for the origin of the system of administration of
justice.
Social disobedience:
Social disobedience was rising due to absence of system of administration of justice.
Group conflicts:
Conflicts between individuals started to grow like group conflicts and this factor forced the need
of administration of justice.

8. CLASSIFICATION OF JUSTICE:
Justice can be classified into two main types, natural justice and legal justice.

26
Natural Justice: Natural justice is based on fundamental principles of fairness and equity that
exist inherently in human nature.
Legal Justice: Legal justice refers to the administration of justice through established legal
systems and institutions.

9. KINDS/CLASSIFICATION OF LEGAL JUSTICE:

Private Justice:
Private justice means solving problems without going to government courts. People in a
disagreement choose someone neutral to help them find a solution, using methods like arbitration
or mediation. The decisions made are usually final and can be enforced.

Public Justice:
Public justice is when disputes go through the formal legal system run by the government.
Judges or juries decide based on established laws in public courts. It ensures fairness,
transparency, and the decisions are enforced by government authorities.

10. CLASSIFICATION OF PUBLIC JUSTICE:

Public justice is divided into two main types: civil justice and criminal justice.

Civil Justice:
Civil justice deals with disputes between individuals, businesses, or organizations. It usually
involves compensation or solutions to private conflicts rather than punishment.
Examples:
✓ A person sues a company for selling a faulty product.
✓ A landlord takes legal action against a tenant for not paying rent.
✓ Two neighbors go to court over a property boundary dispute.
For example, if X enters into a valid contract, his right to have the contract performed is a
primary right. If the contract is broken, his right to damages for the loss caused to him for the
breach of contract is sanctioning right. A primary right may be enforced by specific enforcement.
A sanctioning right is enforced by sanctioning enforcement.

27
Criminal Justice:
Criminal justice focuses on crimes that harm society. The government takes action against
criminals, and punishments can include fines, imprisonment, or other penalties. The main
purpose and object of criminal justice is to punish the wrongdoer (offender) and to maintain law
and order in society. It is the State which punishes the Criminal. Punishment necessarily implies
some kinds of pain inflicted upon the offender or loss caused to him for his criminal act which
may either be intended to deter him from repeating the crime.
Examples:
✓ A person is arrested for theft or robbery.
✓ Someone is charged with drunk driving.
✓ A court punishes a person for committing fraud or assault.

11. DIFFERENCE BETWEEN CIVIL & CRIMINAL JUSTICE:

 Purpose:
Civil Justice: The main goal of civil justice is to resolve conflicts between individuals,
businesses, or organizations. It focuses on providing compensation or specific solutions rather
than punishment.
Criminal Justice: Criminal justice deals with crimes against society. It ensures that lawbreakers
are punished to maintain order and protect the public.

 Parties Involved:
Civil Justice: In civil cases, the dispute is between two private parties, such as individuals or
companies. The person who files the case is called the plaintiff, and the person being sued is the
defendant.
Criminal Justice: In criminal cases, the government (state or federal authority) takes legal action
against a person accused of committing a crime. The prosecutor represents the state, and the
accused is called the defendant.

 Punishment or Remedy:
Civil Justice: The punishment in civil cases usually involves paying money (damages) or
following a court order (like returning property or fulfilling a contract). There is no jail time.

28
Criminal Justice: Criminal cases involve punishments like imprisonment, fines, probation, or
community service to ensure justice and prevent further crimes.

 Burden of Proof:
Civil Justice: The plaintiff must prove their case based on the "balance of probabilities," meaning
it is more likely than not that their claim is true.
Criminal Justice: The prosecution must prove the case "beyond a reasonable doubt," meaning
there should be strong evidence that the accused committed the crime.

12. ADVANTAGES AND DISADVANTAGES OF ADMINISTRATION OF JUSTICE:

Advantages of Administration of Justice:

Fairness: The process of administration of justice ensures fair treatment for all individuals
regardless of their background or status.
Order: The process of administration of justice maintains social order by resolving disputes and
punishing wrongdoing.
Protection: The process of administration of justice protects individuals and their rights through
the enforcement of laws.
Resolution: The process of administration of justice provides a mechanism for resolving conflicts
and disputes peacefully.
Deterrence: The process of administration of justice serves as a deterrent by punishing offenders
and discouraging future unlawful behavior.

Disadvantages of Administration of Justice:

Delay: The process of administration of justice being legal processes can be time-consuming,
causing delays in resolving issues.
Cost: The process of administration of justice can be expensive, limiting access to justice for
some individuals.
Complexity: Legal system used for the administration of justice can be complex and difficult for
individuals to navigate without legal assistance.

29
Rigidity: One of the disadvantages of the administration of justice is that it is rigid in nature and
cannot be fit to all the situations.

12. CONCLUSION:
The concept of "Administration of justice" originates from the need to resolve disputes and
maintain social order. It ensures fair and impartial resolution of conflicts. Various kinds of
justice include distributive (fair resource allocation), retributive (punishment for wrongdoing),
and corrective (restoring balance). Overall, administration of justice is vital for a harmonious
society.

Q NO 5 EXPLAIN THE SOURCES OF LAW

[Link]
Sources of law are the origin of laws; whereby the laws came into existence. The term “Sources
of Law” has been used in different senses and manners by various jurists. According to Sir John
Salmond, sources of law can be classified as either legal or historical.
“Law is the rudder of the ship of state.” [A. O’Malley]

2. MEANINGS
Sources of law means the “originator or the roots of law.”
According to Merriam-Webster Dictionary, Sources of law mean Something that provides
authority for judicial decisions and legislation.
3. DEFINITION
a) A process by which the rule of law may be evolved
(Vinogradoff)
b) Legal decisions and legal analysis
(Black's law)
c) Something that provides authority for legislation and precedents
(M. Webster)

30
4. DERIVATION
Source of law
⬇
Roots/ origin of law
4. KINDS/CLASSIFICATION/TYPES
Sources of law can be classified into two major kinds:
i. Legal sources
Legal sources are those sources that are the instruments or organs of the State by which legal
rules are created, e.g., legislation and precedents.
ii. Non-Legal Sources:
Non-legal are the sources of law where common rules subsequently turned into legal principles,
these are usually unauthoritative and non legal such as Religion, Juristic writing, etc. Their
Details Are Given as under:

[Link] OF LEGAL SOURCES

There are five types of legal sources of law:
a) Constitutional law
b) Legislation
c) Precedents
d) Agreement
e) Global institutional development

a) Constitutional Law
1. Meanings: According to Cambridge Dictionary, Constitutional Law means; the body of
political principles used to govern a state.
2. Derivation: The word Constitution is derived from a “Latin” word, “Constituere” which
means “a body of laws”.

3. Definitions:
The definitions of constitutional law are given as under:

31
 The supreme law of the land
[John Salmond]

The written instrument embodying the fundamental law, together with any formal amendments.
[Black’s Law Dictionary]

4. Illustration:
Following are the illustration of Constitutional law:
 Constitution of Pakistan 1973
 Constitution of China 1982
 Constitution of Malaysia 1957
[Link] laws:
o Brown Vs. Board of Education (1954) Discrimination is not allowed by the
constitution.
o Panama Paper case:
Imran Khan Niazi Vs. Muhammad Nawaz Sharif PLD 2017 SC 692
Supremacy of the constitution; no man, no king, no government above the Constitution.

b) Legislation
Legislation is like making important rules for a whole country. These are like the instructions
given by the leaders we choose. These rules help everything work well, from how we drive, to
how schools run. So, legislation is a way to keep things fair and clear for everyone.
In Pakistan such laws are made by the parliament or in emergency situation by the president.
1. Meanings:
According to the Oxford Dictionary legislation means; the process of making or enacting laws.
[Link]:
The term legislation has been derived from two Latin words;

32
The first one is “Legis” which means “law” and the other one is “Latum” which means “to
make.” Combined, the legislation means; “to make law.”

[Link]:
The preparing and enacting of laws by local, state, or national legislatures.
[Britannica]
The process of making or enacting a positive law in a written form.
[Black’s Law Dictionary]

The law-making process by a legislative authority is called legislation.

[Link] of legislation:
There are two main types of legislation:
• Supreme legislation; law-making by sovereign itself.
• Sub-ordinate legislation: law-making by an authority other than the sovereign.

c) Precedents
One of the most important legal source of law is precedent. When an apex court, like high court
or supreme court decides a case, its ruling becomes a precedent. This means that similar future
cases should be decided in a similar way. It’s like following a path that others have taken before.
Courts use precedents to make fair and consistent decisions. They look at past cases to see how
similar situations were handled. If a case is very similar to a past one, the court often follows the
same decision as before.
[Link]:
According to Oxford’s Dictionary, precedent means;
a previous case or legal decision that may be or must be followed in subsequent similar cases.
Simply precedents mean “Judge made laws”.
[Link]:

33
The definitions of precedents are given as under:
A judicial decision that contains in itself a principle.
[Sir John Salmond]
An acion or official decision that can be used as support for later actions and decisions.
[Black’s Law Dictionary]
[Link]:
The types of precedents are:
• Conditional Precedents
• Persuasive Precedents
• Binding Precedent
• Declaratory Precedent
• Original Precedent
• Precedents Sub Silentio
• Super Precedent

4. Parts of Precedents:
There are two parts of precedents:
Ratio Decidendi: Rationality or reason behind the decision.
Obiter Dicta: Remarks of judges which are not part of the case.

d) Agreements and Conventions

Agreement is an important legal source of law. It happens when people agree to do something or
follow certain rules. This agreement can be written or spoken. When people agree, it becomes a
promise that the law recognizes.
According to Sir John Salmond, agreements and conventions are the sources of conventional and
contract laws.
1. Illustration:
In Pakistan, the illustration of Agreements and Conventions as sources of law is the Contract Act
1872.
2. Case Law:

34
Balfour Vs. Balfour (1939): This case law is the foundation of conventional law.

e) Global Institutions Development

Another important source of law is Global Development in the international community, as it
deals with transnational problems. International conventions and institutions have become a
ground for legislation. These institutions are:
- WTO (World Trade Organization)
- UNO (United Nations Organization)
- WB (World Bank)
- IMF (International Monetary Fund)
II. TYPES OF NON-LEGAL SOURCES

There are three major non-legal sources:

A. Customs
B. Religion
C. Juristic Writings
A. CUSTOMS
Custom is a way people in a society naturally behave over time. It can become a source of law
when it’s consistent and accepted by the community. Customs can shape rules that people
follow, and sometimes, courts consider these customs when making legal decisions. So, custom
can be like a “unwritten law” based on how people have always done things in a particular place
or group.
1. Meanings:
According to *Oxford’s Dictionary*, Custom means a traditional and widely accepted way of
behaving or doing something specific to a particular society, place, or time.
2. Derivation:
The word custom is derived from a French word, “Constume,” which means “Common way of
doing things.”
3. Definition:
The definition of custom is given as under:
General rules and practices that have become the law through unvarying habit and common use.

35
 [Black’s Law Dictionary]

4. Types of Custom:
The types of customs are given as under:
- Legal Custom
- Conventional Custom
- Local Custom
- General Custom
- Binding Custom
- Non-Binding Custom

5. Case Law:
Raja Verma Vs. Ravi Verma

B. RELIGION
According to Oxford’s Dictionary, religion means the belief in and worship of a superhuman
controlling power.
Law and religion are the regulators of social relations, and religion is, therefore, an important
source of law.

1. Illustration:
- Islamic Law (For Muslims)
- Hindu Law (For Hindus)
2. Case Laws:
R. Vs. University of Cambridge
Cowan Vs. Melbourne (1917)

C. JURISTIC WRITINGS

36
Juristic writings are the opinions or reviews of lawyers, law-makers, jurists, and judges which
help in the enactment or making of law.

“Good juristic writing is clear legal thinking made visible.”

[Bill Wheeler]

III HISTORICAL SOURCES OF LAW:

Code of Hammurabi: Around 1754 BC, King Hammurabi of Babylon created one of the earliest
known written laws. It was carved on a stone pillar and had rules for different situations.

Roman Law: The ancient Romans had a set of laws called the "Twelve Tables." These were
written down around 450 BC and covered various aspects of daily life.

Common Law: In medieval England, judges started making decisions based on past cases. These
decisions became precedents that formed a body of common law.

Napoleonic Code: In the early 19th century, Napoleon Bonaparte introduced a comprehensive
legal code in France called the Napoleonic Code. It influenced many legal systems worldwide.

5. CONCLUSION
Consequently, we can say that sources of law are the origin of laws; whereby the laws came into
existence. The term “Sources of Law” has been used in different senses and manners by various
jurists. According to Sir John Salmond, sources of law can be classified as either legal or non-
legal.

“A bad law is no law.”

Q NO 6 EXPLAIN LEGISLATION.

1. INTRODUCTION

37
Legislation is the law-making process or procedure through competent authority. The laws which
are made through the process of legislation are called statutes. Legislation has great importance
in the modern world.

"Good legislation should bring clarity, not confusion."

[Bill Haslam]

2. MEANING
According to the Oxford Dictionary, legislation means:
The process of making or enacting laws.

3. DERIVATION

Legislation

Legis Lation

Law To make

To make/to set of law

4. DEFINITIONS:
i. The preparing and enacting of laws by local, state, or national legislatures.
[Britannica]

38
ii. The process of making or enacting a positive law in a written form.
[Black’s Law Dictionary]

iv. The law-making process by a legislative authority is called legislation.

5. POWER
In Pakistan, there are two lists into which legislative powers are divided:
- Federal list
- Provincial list

6. EXAMPLE OF LEGISLATION
Pakistan Penal Code 1860

6. TYPES OF LEGISLATION
According to Salmond, there are two major types of legislation:
- Supreme Legislation
- Subordinate Legislation

7. SUPREME LEGISLATION
Supreme legislation is that legislation that is controlled directly by the sovereign authority of the
state. Supreme legislation is the highest set of rules that govern a country, acting as the ultimate
authority. It includes the constitution and laws that guide how a nation operates. It is the
expression of legislative will of a supreme legislative authority.

"Supreme legislation is that which proceeds from the sovereign power in the state."
[Sir John Salmond]

39
The supreme legislation cannot be repealed, annulled, or controlled by any other legislative
authority.

Illustration:
The Parliaments of Pakistan and India possess the power of supreme legislation.

8. SUBORDINATE LEGISLATION
Legislation that derives from any authority other than the sovereign power in a state and that
therefore depends for its continued existence and validity on some superior or supreme authority.

Subordinate legislation is that which proceeds from any other authority than the sovereign
power.
[Sir John Salmond]

CASELAW:
Hukam Chand vs Union of India.

HELD:
It was held that a sovereign legislature has power to enact law and a subordinate legislation has
to act within the limit of power delegated to it.

EXPLANATION:
Subordinate legislature refers to laws made by authorities other than the main legislature
(Parliament), but with its permission. It helps in making detailed rules and regulations for smooth
governance. These laws must follow the main laws passed by Parliament and cannot go against
them.

Kinds of Subordinate Legislation:

Salmond refers to five kinds of subordinate legislation:
i. Colonial Legislation:

40
Colonial legislation is the legislation done by the Ministers of the colonies. The ministers are
subordinate to the Crown and can alter, make, and repeal any colony enactment.

ii. Judicial Legislation:

The legislative power has also been given to the judiciary for the regulation of their procedure.

iii. Municipal Legislation:

Municipal law is the national, domestic, or internal law of a state. Some municipal authorities are
also allowed to make their bye-laws for limited purposes within their areas.
Illustration:
The Municipal Corporations Act 1882.
Local Government Act 1888-1933.

iv. Executive/Delegated Legislation:

Another kind of legislation is executive legislation or delegated legislation. The main function of
the executive indeed is to enforce the laws, but in certain cases, the power of making rules is
delegated to the various departments of the government.
Illustration:
Laws are made by health or police departments for their administration.

v. Autonomous Legislation:
Sometimes the State allows private persons like universities, railway companies, etc., to make
bye-laws that are recognized and enforced by law courts. Such legislation is called autonomous
legislation.
Illustration:
Railway companies may make bye-laws for the regulation of their undertaking.

9. ADVANTAGES OF LEGISLATION
Legislation as a source of law has many advantages:
 Legislation is both constitutive and abrogative.

41
  Legislation is a necessary instrument not only for the growth of law but also for its
reform.
 Legislation is based on the principle of division of labor and consequently enjoys the
advantages of efficiency.
 Legislation satisfies the requirement of natural justice that laws shall be known before
they are enforced.
 Legislation makes rules for the cases that have not yet risen.
 The legislative process is very thorough and comprehensive.
ADVANTAGES OF LEGISLATION OVER PRECEDENT:
The following are the advantages of legislation over precedent;
i. As to Abolishment
Legislation can not only make law but can also abolish it
Precedent can only make laws.
iii. As to Codification:
Legislation is available in codified form
Precedent is not available in codified form. It is available in abstract decisions of
the judges.
iii. As to Collective Wisdom:
Legislation is given from different bodies. It is a result of collective wisdom.
Precedent can be called one man show.
iv. As to Principle of Democracy:
Legislation follows the principle of democracy.
Precedent doesn’t follow the principle of democracy.
v. Brief and clear:
Legislation is available in brief and clear form.
Precedent is not in clear form. It is rather ambiguous.
vi. As to Prospective:
Legislation is prospective in its nature
Precedent is not of prospective nature rather it is retrospective.
vii. Easy to Amend:
Legislation can be easily amended

42
Precedent cannot be easily amended and it takes time for change.
viii. As to Supporting School:
Legislation is supported by analytical school of jurisprudence.
Precedent is supported by historical school of jurisprudence.
ix. As to Source of Law:
Legislation is ranked as first source of law.
Precedent is ranked as second source of law.

10. DISADVANTAGES:
Rigidity:
Legislative processes can be slow and cumbersome, making it challenging to respond quickly to
emerging issues or changing circumstances.

Complexity:
Legislation can be lengthy and complex, making it difficult for individuals without legal training
to understand their rights and obligations.

Subjective:
The legislative process may be influenced by political factors, potentially leading to laws that
reflect the interests of powerful groups rather than the general population.

Lack of Specificity:
Some legislation may be broad and lack detailed guidance, leaving room for interpretation and
inconsistent application.

Potential for Unintended Consequences:

Laws created through legislation may have unintended consequences or fails to address all
aspects of a particular issue.

11. OBJECTIVE OF LEGISLATURE:

43
The legislature makes laws to govern a country fairly and peacefully. Its main goals are to
protect citizens' rights, maintain law and order, and ensure justice. It also creates policies for
education, healthcare, and the economy. By making and updating laws, the legislature promotes
stability and national development.

12. POSITION OF LEGISLATURE IN CONSTITUTIONAL LAW:

According to article 141 of the constitution of Pakistan.
✔️Majlis-e-Shoora (Parliament) may make laws for the whole or any part of Pakistan.
✔️Provincial Assembly may make laws for the province or any other part thereof.

13. IMPORTANCE OF LEGISLATURE

The legislative is important because it makes laws that keep a country organized and fair. It
protects people's rights, ensures justice, and maintains order. The legislature also controls
government actions, approves budgets, and represents the people's voice. Without it, a country
cannot function properly or ensure fair governance.

14. CONCLUSION
To conclude, we can say that legislation is the law-making process or procedure through
competent authority. The laws which are made through the process of legislation are called
statutes. Legislation has great importance in the modern world.

"Legislation is the art of compromise."

[Harry Reid]

Q NO 7 EXPLAIN PRECEDENT.

1. INTRODUCTION
Precedent means a previous decision. A judicial precedent is one which contains a principle of
law. Precedent is the second most important legal source of law, bearing significant authority
worldwide. Precedents guide how to deal with future similar cases. A precedent settled by apex
courts is binding in nature on lower courts. English law is mostly based on precedents.

44
Precedents are the most important sources of law and are the important characteristics of the
Rule of Law. They have enjoyed high authority at all times and in all countries. These are the
laws that are created by the Courts.
“Precedents perpetuate the principles.”
[Benjamin Disraeli]

2. MEANING
According to Oxford’s Dictionary, precedent means; a previous case or legal decision that may
be or must be followed in subsequent similar cases.
Simply precedents mean “Judge made laws.”

3. DERIVATION
The word precedent is derived from the Latin word “Praecedere” which means “to go in front
of.”
Praecedere

To go in front of.

4. DEFINITION
The definitions of precedents are given as under:

i. A judicial decision that contains in itself a principle.

[Sir John Salmond]
ii. An action or official decision that can be used as support for later actions and decisions.
[Black’s Law Dictionary]
iv. A court decision that is cited as an example to resolve similar questions in later cases.”
[Legal Dictionary]

5. ESSENTIALS:
- Ratio Decidendi (Rationality or reason behind the decision.)

45
- Obiter Dicta (Remarks of judges which are not the part of the case.)

6. CROSS REFERENCE:
Article 189 and 201 of the Constitution of Pakistan 1973.

7. THEORIES
i. Declaratory theory
According to this theory, judges are no more than the discovery of law. they discover a law on a
particular point and declare it. Blackstone’s Declaration Theory of Precedent states that judicial
decisions, especially those made by higher courts, serve as declarations of the law rather than
creations of new law. According to this theory, judges interpret and declare the existing law
rather than actively making new laws. Precedents, or previous court decisions, provide guidance
for future cases, ensuring consistency and stability in the legal system.

ii. Judge make law

According to this theory, judges do make laws i.e. president is the law. the law of England is
based only on the judge making laws. Salmond’s theory suggests that judges play a role in
lawmaking through their decisions. According to Salmond, when judges interpret and apply the
law to specific cases, they are essentially making law in those particular situations. This theory
highlights the creative aspect of judging, as judges contribute to the development and evolution
of legal principles through their decisions. Unlike the Declaration Theory, Salmond’s perspective
implies a more dynamic role for judges in shaping the law.

7. DOCTRINE OF STARE DECISIS

“Stare decisis” is a Latin term that means “to stand by the things decided.”
Stare decisis is the doctrine that courts will adhere to (stick to) precedent in making their
decisions.
Simply, the decisions of higher courts will be binding to the decisions of lower courts.
 In Pakistan
According to Articles 189 and 201 of the Constitution of Pakistan 1973, decisions of the
Supreme Court are binding on other courts.
8. METHODS OF PRECEDENTS
i. Deductive (Fixed)

46
In this method, the law is already fixed, settled, and applied as it is in the individual cases by the
court.

ii. Inductive (Molded)

In the individual method, the law is molded according to the facts of the case.

9. DIFFERENCE BETWEEN PRECEDENT & JUDGMENT

Judgment: A decision made in a specific case (unique to the situation).
Precedent: A past decision serving as an example for similar future cases (a guide for tomorrow).

10. NATURE OF PRECEDENT:

- Ensures fairness and consistency.
- Can be binding(must follow) or persuasive (optional).
- Adaptable to societal and legal changes.

11. SCOPE OF PRECEDENT:

Guides Future Cases: Judges rely on past rulings for consistency.
Binding on Lower Courts: Mandatory adherence to higher court decisions.
Flexibility: Precedents can be modified or overturned.
Legal Development: Shapes evolving laws.
Stability: Promotes predictability in the legal system.

12. KINDS OF PRECEDENTS

The kinds of precedents are given as under:
i. Conditional Precedents
ii. Persuasive Precedents
iii. Binding Precedent
iv. Declaratory Precedent
v. Original Precedent
47
vi. Precedents Sub Silentio
vii. Super Precedent

Their detail is given as under:

i. Conditional Precedents:
The precedents which are binding in specific terms and conditions are called conditional
precedents.

ii. Persuasive Precedents:

“A precedent that is not binding on a court, but that is entitled to respect and careful
consideration.”
[Black’s Law Dictionary]

iii. Binding Precedent:

“A precedent that a court must follow.”
[Black’s Law Dictionary]

iv. Declaratory Precedent:

“A precedent that is merely the application of an already existing rule.”
[Black’s Law Dictionary]

v. Original Precedent:
“A precedent that creates and applies a new legal rule.”
[Black’s Law Dictionary]

vi. Precedent Sub Silentio:

“A legal question that was neither argued nor explicitly discussed in a judicial decision but
seems to have been silently ruled on and might therefore be treated as a precedent.”
[Black’s Law Dictionary]

48
vii. Super Precedent:
1. “A precedent that defines a law and its requirements so effectively that it prevents divergent
holdings in later legal decisions on similar facts.”
2. “A precedent that has become so well established in the law by a long line reaffirmation that is
very difficult to overturn it.”
[Black’s Law Dictionary]

13. FACTORS THAT DESTROY BINDING EFFECT

- Abrogated
- Reversal
- Ignorance of status
- In-constituency with the same rank
- Inconsistency with the higher court
- Erroneous decision

14. CONCLUSION
Consequently, we can say that precedents are the most important sources of law and are the
important characteristics of the Rule of Law. They have enjoyed high authority at all times and
in all countries. These are the laws that are created by the Courts.

“Precedents once established are so much positive power.”

[James Madison]

Q NO 8 EXPLAIN CUSTOM.

1. INTRODUCTION

49
The customs are the main and earliest sources of law. When there was no written law, there were
customs which used to govern and regulate human beings. Most of the laws originated from the
customs.
“Bad customs make bad laws.”
[J. Alken]

2. MEANINGS
According to Oxford’s Dictionary, Custom means: a traditional and widely accepted way of
behaving or doing something specific to a particular society, place, or time.

3. DERIVATION:
The word custom is derived from a French word, “Constume” which means “Common way of
doing things.”

4. DEFINITION:
The definitions of customs are given as under:
i. General rules and practices that have become the law through unvarying habit and common
use.
[Black’s Law Dictionary]
ii. The uniformity of conduct of all persons under like circumstances.
[Carter]

5. ORIGIN:
The origin of the customs is in primitive societies. When there was no codified law, there were
customs to govern human beings and regulate human behavior.

6. TYPES
i. Binding customs
ii. Non-binding customs
iii. Local custom

50
iv. Legal custom
v. Conventional
vi. General Custom
These details are as under:

I. Binding custom
These Customs Are the Customs That Are Enforced by Law
> Illustration
- Commitment to marriage
- Transmission of property

II. Non-binding customs

The customs which are not enforced by law are the customs, without binding effect but they are
still prevalent in society and have social sanctions.
> Illustration
Every society has a custom for how to be dressed in our society or how to be addressed with
elder and younger.

III. Local customs

Local customs are the customs to be followed in a particular locality.
> Illustration
- Custom of Punjab
- Customs of KPK

IV. Legal custom

The customs which are allowed and recognized by law are called legal customs.
> Illustration
- Laws against slavery

51
V. Conventional customs
These are the customs through agreement and contract with private peoples.
> Illustration
- Private law

VI. General customs

General customs are the customs to be allowed all over the state.
> Illustration
- Common law in England

7. ESSENTIALS
- Reasonable
- Peaceful
- Conformity With State Law
- Certainty
- Continuity
- Universal
The details are as under:

I. Reasonable
A Custom should be reasonable (any reason behind it) and should be based on basic morality.

II. Conformity with law

A Custom should have a conformity with the law of land otherwise this will be no existence of
that custom if there is no conformity.

III. Certainty
A Custom should be ascertained and there should no uncertainty in it. It must be accurate and as
clear as water.

52
IV. Continuity
A Custom must be consistent with the basic principles of law and there should be no blockage in
it there should be no interpretation and be continued for or immemorable time.

V. Peaceful
A Custom must be peaceful and if there is violence in a custom it should not consider a custom.

8. THEORIES REGARDING CUSTOMS

There are two theories regarding customs:
i. Historical theory
ii. Analytical theory
Their detail is as under:

I. Historical theory
According to the historical School of thought, the customs depend upon the history.

II. Analytical history

According to the analytical school of thought for custom, there must be a valid reason it has no
concern with past or history.

9. DIFFERENCE BETWEEN CUSTOM AND USAGE:

Customs: Traditions or habits followed by a specific community, passed down through
generations (e.g., local fishing rights in England).
Usages: General practices accepted widely (e.g., standard business contract terms).

10. RECOGNITION OF CUSTOM IN LEGAL SYSTEMS:

1. Common Law System (e.g., UK, USA, Canada):

53
 - Courts recognize customs if they are long-standing and reasonable.
- Example: Fishermen’s customary rights to fish in specific coastal waters in England.

2. Civil Law System (e.g., France, Germany, Italy):

- Written laws dominate, but customs fill gaps where no law exists.
- Example: Traditional trade practices in French commercial contracts.

3. Islamic Law (Sharia):

- Customs (Urf) are valid if they align with the Quran and Hadith.
- Example: Mahr (dower) in Muslim marriages.

4. Hindu Law (e.g., India, Nepal):

- Recognizes customs in family and property matters.
- Example: Joint family property systems in India.

5. International Law:
- Customs become binding when widely practiced (e.g., diplomatic immunity under the Vienna
Convention).

11. ESSENTIALS OF A VALID CUSTOM:

Reasonableness: Must be fair and logical.
Continuous Observance: Followed consistently over time.
Public Policy Alignment: Must not conflict with societal values.
Non-Contradiction: Should not oppose other customs or statutes.
Certainty: Rules must be clear and specific.
Compulsory Observance: Mandatory adherence within the community.

12. CONCLUSION
54
To conclude, we can say that customs are the main and earliest sources of law. When there was
no written law, there were customs which used to govern and regulate human beings. Most of the
laws originated from the customs.
“Custom is the oldest source of international law, as well as the law in general.”
[Oppenheim]

Q NO 9 LEGAL RIGHTS, ITS ELEMENTS AND KINDS

1. INTRODUCTION:
Legal rights refer to the protections and entitlements individuals possess under the law. These
rights safeguard people's freedoms, ensuring fair treatment and justice. They include
fundamental principles like the right to life, liberty, and property. Legal rights form the basis of a
just and orderly society, promoting equality and upholding human dignity.

2. CROSS REFERENCE:
- Article 4 of the constitution of Pakistan 1973 deals with the rights of individuals.
- Article 8 to 28 of the constitution of Pakistan 1973 deals with the fundamental rights.

3. DIAGRAMMATICAL ANALYSIS:

LEGAL RIGHT

HAVING FORCE OF AN INTEREST

LAW

INTEREST HAVING FORCE OF LAW

55
4. MEANING OF LEGAL RIGHT:
According to Black's law dictionary:
"A right created or recognized by law."

5. DEFINITION OF LEGAL RIGHT:

According to Salmon:
"A right is an interest recognized and protected by law. It is any interest respect for which a
duty, and disregard which a wrong."

6. PARTIES OF LEGAL RIGHT:

- Following can be the parties of legal right.

- State or sovereign which confers legal rights.
- The person whom right is conferred.
- The person on whom duty is imposed.

7. ENFORCEMENT OF LEGAL RIGHTS:

- Suit for damages.
- Suit for restitution.
- Suit for specific performance.
- Suit for injunction.

8. DIFFERENCE BETWEEN RIGHT AND LEGAL RIGHT:

A right is something fair or morally okay, while a legal right is a specific fair thing recognized
and protected by the law. Legal rights are the ones that the law officially supports and enforces.
So, all legal rights are rights, but not all rights are necessarily protected by the law.

56
9. DIFFERENCE BETWEEN RIGHT AND NIGHT:
"Right" means doing what's good and fair, following moral principles. "Might" is about having
power or strength to enforce decisions, whether they're right or wrong. So, it's choosing what's
good versus relying on strength or authority.

10. ESSENTIALS/CHARACTERISTICS OF LEGAL RIGHT:

A legal right have following six essentials.
Recognized by Law:
A legal right must be written or accepted in law. If it is not recognized by the law, then it is not a
legal right.
Example:
The right to vote is given by the law in most countries. Without this legal rule, no one could
claim the right to vote.

Enforceable in Court:
If someone’s legal right is violated they can go to court to get help. Court have the power to
protect legal rights.
Example:
If someone steals something of yours.

Against the person or the state:

A legal right always works against someone either another person or the government who must
respect that right.
Example:
You have the right to privacy. That means others, including the government, must not invade
your personal life without permission.

Comes with a Duty:

With every legal right, there is a duty on someone else to respect that right. Rights and duties go
hand in hand.
Example:

57
If you have the right to free speech, others have a duty not to stop you from speaking (unless it's
illegal speech, like hate speech).

Available to Individuals or Groups:

Legal rights can be for one person or for a whole group or community.
Example:
Individual: Right to own a car.
Group: Workers in a company have the right to a safe workplace.

Comes with a Duty:

With every legal right, there is a duty on someone else to respect that right. Rights and duties go
hand in hand.
Example:
If you have the right to free speech, others have a duty not to stop you from speaking (unless it's
illegal speech, like hate speech).

Available to Individuals or Groups:

Legal rights can be for one person or for a whole group or community.
Example:
✓ Individual: Right to own a car.
✓ Group: Workers in a company have the right to a safe workplace.

Backed by Authority:
Legal rights are supported by the state or government. If your rights are broken, the government
(through police or courts) can help you.
Example:
If someone commits a crime against you, the police can arrest them because the law protects
your right to safety.
11 ENFORCEMENT OF LEGAL RIGHT:
Legal right can be enforced by the following ways

58
1. Suit for damages
2. Suit for restitution
3. Suit for specific performance
4. Suit for injunction

12. ELEMENT OF LEGAL RIGHT:

➢ According to Salmond
Every legal right has five essential elements discussed as follows:
1. Subject of right
2. Subject of duty
3. Object of right
4. Content of right
5. Title of right

 SUBJECT OF RIGHT:
The first essential is that there must be a person who is owner of the right. he is
the subject of legal right and may also be called person of inherence.
I. Illustration
‘A’ buys a house from ‘B’. ‘A’ is the subject of right to have that house from ‘B’.
 SUBJECT OF DUTY:
A legal right is always against another person who is under a corresponding duty
to respect that right. Such a person is called subject of duty.
Subject of duty is also called a Person of incidence.
I. Illustration:
‘X’ buys a car from ‘Y’. ‘Y’ is subject of duty to deliver the car to ‘X’.

 OBJECT OF RIGHT
Object of right is the thing over which the right is exercised. It may also be called

59
the subject matter of the right.
I. Illustration:
‘A’ buys a house form ‘B’. House is the object of right.
Types:
Tangible objects: Physical property like land, goods, or money.
Intangible objects: Intellectual property, reputation, or contractual rights.
 Purpose: The object signifies the focus or the end goal of the legal right.
 Example: Here are some general examples of objects of rights
Tangible Objects
1. Land or real estate
2. Vehicles
3. Goods or merchandise
4. Money or currency
Intangible Objects
1. Intellectual property (patents, copyrights, trademarks)
2. Contractual rights
3. Digital assets (cryptocurrency, email accounts, social media profiles)
4. Shares or stocks
Services
1. Healthcare services
2. Education services
3. Financial services
4. Transportation services
Other Objects
1. Reputation
2. Privacy
3. Freedom of expression
4. Employment or job opportunities

60
  CONTENTS OF RIGHT:
Contents of right are the acts which a subject of duty is bound to do or abstain
from doing.
I. Illustration:
‘A’ owns a house with the following contents:
i. A can use it
ii. A can possess it
iii. A can dispose of it
And they would lie in the fact that the seller of house and every other person
should not disturb the peaceful possession and enjoyment of the house by the
buyer.
 TITLE OF RIGHT:
Last essential of legal right is title of right. It means that facts must show how the
right is vested in the owner:
i. Illustration:
a. Right by purchase
b. Right by gift
c. Right by prescription
d. Right by inheritance

 TITLE OF RIGHT AS ESSENTIAL:

Some of the jurists are of view that title of right is source of legal right.
` According to Salmond, Title of right is most essential element of legal right.

13. KINDS OF LEGAL RIGHTS:

Legal rights are of following kinds:
i. Right in rem and right in personam.
ii. Right in re-propria and realiena.

61
iii. Proprietary and personal rights.
iv. Positive and negative rights.
v. Municipal and international rights.
vi. Ordinary and fundamental rights.
vii. Public and private rights.
viii. Vested and Contingent Right.
ix. Primary or Antecedent and Secondary or Remedial Rights.

Perfect And Imperfect Rights:

Perfect rights are the rights that are recognized and fully enforced by the law.
Imperfect rights are the rights that are recognized by the law but are not fully enforceable.
ii. Legal And Equitable Rights:
Legal rights are the rights that are created and recognized by the legislature.
Equitable rights are the rights that are recognized and created by the common law courts.
iii. Public And Private Rights:
The rights which apply to the public at large are called public rights.
The rights which deal with the private relationship between the individuals are called private
rights.
iv. National And International Rights:
The rights which are given by the constitution of a particular nation/state are called national
rights.
The rights which are given by international law are called international rights.
v. Primary And Secondary Rights:
The rights which are conferred by the substantive law are called primary rights.
The rights which are conferred by the procedural law are called secondary rights.
vi. Positive And Negative Rights:
A positive right is a right for the benefit of a person.
A right not to be in harm, but to stop individuals from anything is called a negative right.

62
vii. Rights In Re-Propria And Re-Aliena:
Right or any easement in full ownership of our property is called right in Repropria.
Right or easement over any other’s property is called the right in Re-Aliena.
viii. Vested And Contingent Rights:
The right which depends upon the happening of a certain event is vested.
The right which depends upon the happening of uncertain events is called contingent right.
ix. Real And Personal Rights:
Real rights are the rights that are exercisable against the world at large.
Personal rights are the rights that a person has over his own body.
x. Inheritable And Uninheritable Right:
The right which survives with its owner is called an inheritable right.
The right which dies with its owner is called an uninheritable right.

14. CONCLUSION:
Legal rights are the cornerstone of a just society, ensuring fairness and protection for all. They
empower individuals, guaranteeing freedoms like speech and privacy. By upholding these rights,
a balanced legal framework promotes harmony and justice. Embracing and respecting these
rights fosters a society where every person can thrive with dignity and equality.

Q NO 10 Define ownership explain its kinds in detail?

1. INTRODUCTION:
Ownership is like a connection between a person and something they own. It can be a physical
thing, like a bike or a house, or it can be a right, like owning a piece of music you wrote. This
idea is important both in the law and in how we interact with each other in society. When people
started realizing that certain things belonged to them and not to others, the idea of ownership
began. It's like when you say "This is mine" or "That is yours." It's about understanding who has
the right to use or control something.

2. INTERPRETATION OF TERM OWNERSHIP:

63
According to Oxford Dictionary:
“The exclusive right to use, possess, and dispose of property.”

3. DEFINITION OF OWNERSHIP:
According to Salmond:
“Ownership denotes the relation between a person and right that is vest in him.”
- *According to Austin:*
“A plenary control over an object.”

3. RIGHT OF OWNERSHIP UNDER CONSTITUTION:

➢ U/sec: 24 of Pakistan Constitution 1973
Every person has a right to hold own and dispose of property.

4. MAIN KINDS OF OWNERSHIP:

6. OWNERSHIP ELEMENTS:
Following are the three kinds of ownership as follows:
Right to continue to possess ----possessionis
Right to possess ---- Possidendi
Right to dispose of---- Dispodendi

 RIGHT TO CONTINUE TO POSSES (POSSESSIONIS):

It’s a right to remain in possession except against a person who has a better title. Even a robber
has the right of possession and only the true owner can interfere with his possession.
 RIGHT TO POSSESS (POSSIDENDI):
It is the right to possess. A person may have a right to possess a thing which he
wants to keep in his possession.
64
  RIGHT TO DISPOSE OF (DIPODENDI):
The owner must have a right to transfer and country the property conveys the property to others.

Nemo Dat Quad Non-Habit

“No one can transfer a better title than he himself has”.

5. ELEMENTS OF OWNERSHIP:
Following are the most important elements of Ownership:

i. Right to Use:
The owner has the right to use the property or asset as they wish.
Example: If you own a car, you have the right to drive it, use it for personal trips, or let someone
else use it.

ii. Right to Enjoy the Benefits:

The owner can enjoy the profits or benefits that come from owning the property.
Example: If you own a piece of land, you can grow crops on it and enjoy the income from selling
them.

iii. Right to Transfer:

The owner has the right to sell, give away, or transfer the property to someone else.
Example: If you own a house, you can sell it or gift it to a family member.

iv. Right to Exclude Others:

The owner can stop others from using or entering their property without permission.
Example: If you own a private property, others cannot enter it without your consent.

v. Right to Alter or Destroy:

65
The owner has the right to change or even destroy their property if they choose.
Example: If you own an old building, you can renovate it or even tear it down if you wish.

5. CHARACTERISTICS/FEATURES OF OWNERSHIP:
Only a person can claim ownership:
Ownership can only vest in a person. It is a relation between a person and thing. And all the
rights related to that thing are to be vested in him.

Indefinite in point of user:

The concept of ownership is indefinite in point of user the owner of a thing is at liberty to use the
thing as he wishes to and he is under no obligation but the others are duty bound not to use that
thing in the same manners as the owner do.

Unrestricted in point of disposition:

The ownership is unrestricted in point of disposition, and an owner can dispose of or alienate his
property whenever he wishes to do so in his life time or by will after his death.

Indeterminate in duration:
An owner can use or possess a thing or property for an indeterminate period of time on the other
hand a mere possessor of thing may have the property or thing for only determinate period of
time.

Right to possess:
An owner has the right to own the thing which he owns this isn’t matter whether he has actual
control over the thing or not. i.e If the Mobile phone of “X” is stolen by “B” now B has the
possession of the thing but A will remain be the owner of the Mobile phone.

Right to consume, Alienate, or destroy the thing:

An owner has all the rights regarding a thing or property to consume it alienate or destroy it in
any any manner whatsoever.

66
Right to use, exhaust, and enjoy the thing:
One of the characteristic feature of ownership is that it provides the owner all the rights
regarding using, enjoying or exhausting the thing or the property i.e how it can be used and right
to income from that thing or property etc.

6. MODES OF ACQUISITION OF OWNERSHIP:

Following are the modes of acquisition of ownership:

1. Purchase:
You acquire ownership by paying money for something. When you buy an item, you exchange
money for the right to own it.
Example: If you buy a car from a dealership, the car becomes yours. You have the full right to
use, sell, or modify it.

2. Gift:
Ownership is transferred to you without any exchange of money. A gift is given freely by the
owner to someone else.
Example: If your grandmother gives you a necklace as a gift, you become the owner of that
necklace, even though you didn’t pay for it.

3. Inheritance:
When someone passes away, their property is transferred to their legal heirs. This is known as
inheritance. The property or assets are passed down through a will or by law.
Example: If your father passes away and leaves you his house in his will, you inherit that
property and become its owner.

4. Exchange:
You acquire ownership by swapping something you own for something someone else owns. It
is like trading one item for another.
Example: If you trade your old video game console for a friend’s guitar, both you and your
friend become the owners of the items you received.

67
5. Accession:
This occurs when something new becomes attached to or is added to something you already
own. You gain ownership of the new item because it is connected to or is an improvement on
what you owned before.
Example: If you own a farm and plant new crops, the crops are considered part of the farm, so
you become the owner of them once they are grown.

6. Adverse Possession:
In some cases, you can acquire ownership of a property if you’ve used it openly and
continuously for a long time, even if the property wasn’t originally yours. However, specific
laws apply, and this usually takes many years.
Example: If someone has lived in a vacant house for 20 years without the real owner taking
action, they may be able to claim ownership of the house based on local laws about adverse
possession.

8. KINDS/TYPES OF OWNERSHIP:
There are following kinds of ownership:

 Corporal and Incorporeal Ownership:

Corporal Ownership:
The ownership of material object is known as the corporeal ownership. e.g Ownership of land
or chattels.
Incorporeal Ownership:
The ownership over intangible things is known as incorporeal ownership. e.g ownership of a
copy right, or trade mark etc.

 Sole and Co-Ownership:

Sole Ownership:
When the right of ownership is vested in only one person it is known as the sole ownership.
Co-Ownership:
When the right of ownership is vested in more than one person jointly, it is called co-
ownership.

68
  Legal and Equitable Ownership:
Legal Ownership:
Legal ownership means having your name on the official property documents. For example, if
Wajeeh Ahsan Alvi buys a house and his name is on the deed, he is the legal owner. Wajeeh has
the right to sell the house, rent it out, or make changes to it.

Equitable Ownership:
Equitable ownership refers to having the benefits and value of a property, even if your name is
not on the official documents. For instance, if Wajeeh Ahsan Alvi’s wife, Mary, pays for part of
the house and lives there, she has equitable ownership. She enjoys living in the house and may
benefit from its appreciation in value, even though her name is not on the deed.

 Absolute and Limited Ownership:

Absolute Ownership:
Absolute ownership means having full control over a property without any restrictions. The
owner can use, sell, or change the property as they wish.
Limited Ownership:
Limited ownership means having control over a property with certain restrictions. For example,
you might own a property but need to follow specific rules or conditions set by others.

9. DIFFERENCE BETWEEN OWNERSHIP AND POSSESSION:

The relationship between possession and ownership is like the relation between body and soul.
Possession means physically holding or using a property, like renting a house. Ownership means
having legal rights to a property, like having your name on the deed. Owners have control and
decision-making power, while possessors use the property but don’t have full control.

10. CONCLUSION:
Ownership is the relationship between the person and the thing by which the person can owns or
dispose off that particular thing. On account of this relationship one can have authority to enjoy
the thing legally.

69
Q NO 11 Define possession, its kinds and modes of acquisition of possession?

1. INTRODUCTION:
In English jurisprudence, possession means having control over something, like land or items,
but it’s different from ownership. Possession is about physical control and intent to use, while
ownership is the legal right to possess, use, and dispose of property. Possession can exist without
ownership, and vice versa.

"Possession" literary means physical control over a thing or an object. It expresses the closest
relation of fact that can exist between a thing and the person, who possess it. In law, possession
means it includes not only physical control over a thing but also an intention to exercise that
physical control. Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'. In human life, consumption of
material things is very essential and it would be Impossible without the position of the material
things. Therefore, the concept of possession is of utmost practical importance in human life.

2. INTERPRETATION OF TERM POSSESSION:

According to Black’s Law dictionary:
“Something that a person owns or control (Property).”

3. DEFINITION OF POSSESSION:
According to Maine:
“Possession is the physical detention coupled with the intention to hold the thing detained as
one’s own.”

4. DAIGRAMATICAL INTERPRETATION OF POSSESSION:

POSSESSION

70
 To Possess

State of Having Something

Elements

ANIMUS POSEDENDI CORPUS POSSESION

Cross Reference:
➢ Article: 24 of constitution of Pakistan
Every person ‘has’ a right to possess the property.

5. REQUISITES OF POSSESSION:
To have possession of something (like a property or object), two main things are needed:
I. Physical Control (or Holding the Thing)
This means the person must actually hold, use, or control the thing.
Example: If you have a phone in your hand or bag, you are physically possessing it.

II. Intention to Possess (Animus Possidendi):

This means the person must have the intention to own or hold the thing on their behalf.
Example: If you’re holding a book because you borrowed it from someone, you don’t intend to
own it. But if you bought the book, then you intend to possess it as yours.

6. ELEMENTS OF POSSESSION:
In English jurisprudence, possession is a fundamental concept in property law. It refers to the
control or occupancy of property, either land or goods. Here are the important elements of the
possession.

i. Physical Control (Corpus Possessionis):

71
This means that a person must have actual control over the object. It could be holding the object,
keeping it in your pocket, or locking it in your cupboard.
Example: You have a bicycle in your garage—you control where it is and who uses it.

ii. Intention to Possess (Animus Possidendi):

This means the person wants to possess the thing and treats it like their own. Without the
intention, even if you’re holding something, you may not be the possessor.
Example: If you borrow a friend’s pen and plan to return it, you don’t have the intention to
possess it permanently.

iii. Knowledge of the Object:

The person must know that they have the object. You can’t possess something you don’t know
you have.
Example: If someone puts a bag in your car without telling you, you don’t have possession
because you don’t know it’s there.

iv. Peaceful Possession:

Possession must be without force or violence. If someone grabs something by using force or
threats, it’s not legal possession.
Example: If you peacefully pick up a lost item and try to return it, that’s valid possession. But if
you snatch someone’s phone, that’s not.

v. Open and Public Possession:

Possession should be visible and known to others. Hiding it secretly can make your possession
doubtful.
Example: Wearing a ring on your finger in public shows open possession. Hiding it secretly may
not prove possession easily.

7. CLASSIFICATION OF POSSESSION:
Possession in fact:
It is an actual physical possession and is a physical relation to a thing.

72
Possession in law:
It means a possession which is recognized and protected by law.

8. MODES OF ACQUISITION OF POSSESSION:

According to Tendon:
Possession is acquired whenever there is union of two elements animus and corpus. The loss of
either tends to destroy it.

i. By Occupation:
Occupation occurs when a person takes control of a thing that has no owner or is abandoned. It's
essentially claiming something that has been left unowned.
Example: If you find a lost wallet on the street and no one claims it, you might acquire
possession of it. The wallet was unowned when you found it, so you took control of it by
occupation.

ii. By Agreement:
This is when two parties mutually agree that one party will acquire possession of property. This
is usually formalized through contracts or agreements.
Example: When you buy a car from someone, you acquire possession of that car. The seller and
the buyer agree that the buyer will have possession of the car in exchange for payment.
Similarly, renting a house or property also involves an agreement where the tenant acquires
possession for the period of the lease.

iii. By Inheritance:
This refers to acquiring possession of property after the death of someone, usually a family
member, through a will or legal inheritance rules.
Example: If your parent passes away and leaves you their house in their will, you acquire
possession of the house by inheritance. The legal process transfers ownership to you, and you
begin to possess it.

iv. By Prescription:

73
Prescription means acquiring possession of property through continuous and uninterrupted use
over a long period, as defined by law. It's like a "use it or lose it" principle for property.
Example: If you've been using a piece of land that belongs to someone else for 20 years without
the owner's objection, you may acquire possession of the land by prescription, assuming the law
in your country allows it. This happens because you've used the land openly and without dispute
for a long time.

v. By Transfer:
This is the acquisition of possession when property is formally transferred from one person to
another, often through a sale, gift, or donation.
Example: If a friend gives you a watch as a gift, you acquire possession of the watch by transfer.
Similarly, when you buy a house, the ownership and possession of the property transfer from the
seller to you.

vi. By Accession:
Accession refers to acquiring possession of something that is attached or added to something you
already own. It's when new things become part of your existing property.
Example: If you own a tree and it produces fruit, the fruit is now yours. Even though the tree
existed before, the fruit (new addition) belongs to you because it's attached to the tree. Another
example could be if you own land and a new building is constructed on it, the building becomes
part of your property.

9. KINDS OR TYPES OF POSSESSION:

Immediate Possession:
When a person has direct physical control over an object or property.
Example: You are holding a book in your hand. You have immediate possession of the book.

Mediate Possession:
When a person has possession through someone else or through an instrument.
Example: You give your book to a friend to hold for you. Your friend has immediate possession,
but you have mediate possession because it is still your book.

74
Corporeal Possession:
Possession of a tangible, physical object.
Example: You own and hold a bicycle. You have corporeal possession of the bicycle.

Incorporal Possession:
Possession of a right or possession of an intangible property.
Example: You have the right of easement over the neighbor’s land.

Representative Possession:
In this case possession is to be exercised by another person on behalf of the owner.
Example: You put your car in a repair shop. The mechanic has representative possession of your
car while it is being repaired.

Concurrent Possession:
When two or more people have possession of the same property at the same time.
Example: You and your roommate share an apartment. Both of you have concurrent possession
of the apartment.

Constructive Possession:
Possession in law even if not in actual physical control, often through documentation or legal
rights.
Example: You have the keys and the title to a car parked in a garage across town. You have
constructive possession of the car.

10. Legal Consequences / Results of Possession:

Legal consequences of acquisition and loss possession are following:
i. Possession is prime facie an evidence of title of ownership.
ii. Transfer of possession is one of the chief modes of transferring ownership.
iv. First possession of a thing which as yet belong to no one is a good title of right.

75
11. COMPARISON OF POSSESSION AND OWNERSHIP:
Ownership and possession have the same subject matter:
 Ownership is a legal concept
 Possession needs not to be legal

12. CONCLUSION:
In English jurisprudence, possession refers to the control or occupancy of property, either
tangible or intangible. It involves both physical control and the intention to possess. Possession is
crucial for establishing ownership rights, transferring property, and resolving disputes.
Ultimately, it serves as a foundational concept in property law.

Q NO 12 Define person. Discuss various types of legal person. Also highlight the difference
between corporation and firm?

1. INTRODUCTION:
In English jurisprudence, a "person" refers to any entity capable of having legal rights and duties.
This includes not only human beings but also corporations. For example, a company can sue or
be sued in court, just like an individual. There may be human being who are not persons like
slaves. And there may be persons who are not human being e.g corporations etc.

2. CROSS REFERENCE:
- Article 9 to 14 of the constitution of Pakistan 1973 deal with the fundamental rights relating to
the person and body.
- Section 11 of the Pakistan Penal code.

3. DEFINITION OF PERSON:
According to Salmond:
“A person is any being whom the law regard as capable of right and duties.”

According to Prof. Gray’s:

“A person is an entity to which rights and duties may be attributed.”

76
Section 11 of the Pakistan Penal Code (1860):
“The word Person includes any company or Association, or body or person, whether
incorporated or not.”

4. DERIVATION OF WORD PERSON:

The word person is derived from Latin word “Persona”.

5. KINDS OF PERSONS:
Persons are of two kinds.
In English jurisprudence, the concepts of natural person and legal person are fundamental to
understanding who or what can have rights, responsibilities, and legal standing.

Natural Person:
A natural person refers to a human being who has individual rights and duties under the law.
This is the most straightforward kind of legal entity, as it pertains to individual people.
Example:
Fatima, an ordinary citizen, can own property, enter into contracts, and sue or be sued in a court
of law. Fatima is a natural person.

Legal Person:
A legal person, also known as a juridical person, is an entity that is not a human being but is
given legal rights and responsibilities by the law. This can include organizations, corporations,
governments, and other entities that can own property, enter contracts, and participate in legal
proceedings.
Example:
ABC Corporation is a company that can own property, enter into contracts, and sue or be sued.
Despite not being a human, ABC Corporation is considered a legal person under the law.

6. TYPES OF LEGAL PERSONS:

77
In English jurisprudence, a legal person refers to any entity that can have rights and obligations,
and can enter into contracts, sue, or be sued. There are two main types of legal persons natural
persons and artificial (or juridical) persons. Here are the different types of legal persons with
examples:

Natural Persons:
Natural persons are human beings. They are individuals with legal rights and responsibilities.
Example: Any individual like Jawad or Emaan.

Artificial Persons:
Artificial persons are entities created by law that have legal rights and responsibilities. These can
be organizations, corporations, governments, etc.

a. Corporations:
Corporations are legal entities that are separate from their owners. They can own property, enter
into contracts, and be sued.
Example: Apple Inc., Google LLC, or a local grocery store registered as a corporation.

b. Charitable Organizations:
Non-profit organizations created to support charitable activities and causes.
Example: The British Red Cross, Oxfam, or a local animal shelter registered as a charity.

c. Partnerships:
Partnerships are businesses owned by two or more individuals who share responsibilities and
profits.
Example: A law firm or a medical practice operated by partners.

d. Limited Liability Partnerships (LLPs):

Similar to partnerships, but with limited liability for the partners.
Example: A consultancy firm registered as an LLP.

78
7. LEGAL STATUES OF A DEAD PERSON:

I. According to Salmon:
Ordinarily speaking, the personality of a human being may be said to commence existing on
birth and cases to exist at death. Dead person (men) are no longer person in the eye of law.

II. According to law:

Dead person (men) are things and not persons they have no rights and no interest. They do not
remain the owners of their property until their successor enter upon their inheritance.

8. LEGAL STATUS OF AN UNBORN CHILD:

An unborn child is a baby that is still in the mother’s womb and not yet born. In law, an unborn
child is not considered a “person” in the full legal sense, but still has some rights under certain
conditions.

KEY POINTS:
I. No Full Legal Personality:
- An unborn child does not have full legal rights like a born person.
- The law generally gives full rights only after birth.

II. Exception: For the Benefit of the Child:

In some cases, the law protects the rights of the unborn child if it benefits the child after birth.
Example: If someone dies and leaves property for their future child, the child can get that
property once born alive.

III. Property Rights:

- An unborn child can inherit property, but only if the child is born alive.
- The law assumes the child was alive at the time of death for inheritance purposes.

79
IV. Criminal Law Protection:
In some legal systems, harming a pregnant woman which causes death or injury to the unborn
child can be a punishable offence.

V. Islamic Law: (if applicable)

Islamic law also recognizes certain rights of an unborn child, especially in matters of inheritance
and lineage, as long as the child is born alive.
CASE LAW: Montreal Trans Way Co. v/s Leveille (1933).

9. CONCLUSION:
In English jurisprudence, a person is understood as an entity with rights and obligations under
the law. This concept includes both natural persons (human beings) and legal persons (like
corporations). The idea is fundamental in ensuring that all entities can engage in legal activities
and be held accountable.

Q NO 13 EXPLAIN TITLE AND ITS KINDS.

1. INTRODUCTION:
The term "title" in law means the legal right to own something, especially property. It shows who
is the real owner of the land, house, or any other asset. When a person has a clear title, it means
there is no legal problem or dispute about their ownership. The title is very important in buying,
selling, or transferring property because it proves who has the right to sell or use that property.

2. CROSS REFERENCE:
✓ Transfer of Property Act, 1882: especially Sections 8 to 11, which deal with transfer and
rights of title.
✓ Sale of Goods Act, 1930: for title in relation to the sale and transfer of goods.

2. DEFINITION OF TITLE:
According to Salmond, "Title is the first of the elements of ownership. It is that which gives the
owner his right to possess and enjoy the property."

80
According to Hibbert, "Ownership includes four rights the right to use, exclude others, transfer,
and possess. Title is the foundation of these rights."

3. DERIVATION OF WORD TITLE:

The word "title" comes from the Latin word "titulus," which means a label, inscription, or a
written or written statement that shows ownership or rights. In ancient times, people used written
documents to prove who owned land or property. That document was called thrills.

4. ESSENTIALS OF TITLE:
A title is the legal right of a person to own and control property like land, a house, or goods. But
for a title to be valid, it must meet some important conditions. These are called essentials of title.

I. Lawful Ownership:
The person must legally own the property. Ownership must be according to law. If the ownership
is not legal (for example, taken by fraud), then it is not a valid title.
Example: If you buy a plot through a proper sale deed and it is registered, then you are the
lawful owner. Your title is valid.

II. Right to Possess and Use

The title must give the person the right to possess, use, and enjoy the property. This means the
owner has full control over the property.
Example: If you have the title to a car, you can drive it, sell it, or let someone else use it — it's
your legal right.

III. Recognition by Law:

The title must be accepted and protected by the law. If something is not recognized by law (like a
fake document), it cannot be used as a valid title.
Example: If a person claims ownership based on a false or unregistered document, the law will
not accept it as a proper title.

IV. Transferability:

81
A valid title must be capable of being transferred to someone else. The person who has the title
can sell, gift, or pass it on by will.
Example: You can sell your house to another person if your title is valid. The buyer gets legal
ownership.

v. Evidence or Proof: There must be some proof to show that the person is the true owner. This
could be in the form of documents like a sale deed, registry, will, or court judgment.

Example: In a property case, the person who shows the registered sale deed will be treated as the
legal owner.

5. KINDS / CLASSIFICATION OF TITLES:

Following are the kinds of a title.

I. Legal Title:
 This is the official and lawful ownership of property, as recognized by courts and law. It
is supported by proper documents, such as a registered deed, sale agreement, or land
record.
 Legal title gives full control and the right to sell, lease, or transfer the property.
 Example: If your name is written in the land registry, you are the legal owner.

II. Equitable Title:

 This is the right to use, enjoy, or benefit from a property, even if the legal documents are
not yet in your name. It is based on fairness (equity), not strict law.
 Equitable title gives partial rights and protection until legal title is received.
 Example: You have paid full money for a house and are living; in it, but registration is
still pending. You have equitable title.

III. Original Title:

 When a person becomes the first owner of a thing or property that was not owned by
anyone before. It is not taken from another person.
 This title is fresh and not transferred from someone else.
 Example: A person finds unclaimed land and registers it legally they have original title.

82
IV. Derivative Title:
 This type of title is transferred from another person who already had ownership. It can
happen through sale, gift, will, or inheritance.
 This title depends on the previous owner's title.
 Example: You buy a bike from a legal owner — your title is derivative.

V. Void Title:
 A title with no legal value. It arises when someone sells property without the right to do
so. Even if the buyer is innocent, the title is not valid.
 No ownership rights are passed.
 Example: A thief sells a stolen mobile the buyer gets a void title.

6. KINDS OF FACTS ESTABLISHING TITLE:

Fact establishing titles are of following kinds:

vestive
facts

investive divestives
facts facts

original derivatives alienative extinctive

titles titles titles titles

7. KINDS/TYPES OF VESTITIVE FACTS:

83
Vestitive facts are the facts or events that create or give a person a legal right, like ownership or
title. These facts are divided into two main types:

 Voluntary Vestitive Facts:

These are the facts that happen with the free will or choice of a person.
The person wants to create a legal right or transfer ownership.

Examples:
- Selling a house
- Giving land as a gift
- Making a contract
- Writing a will
In all these cases, the person willingly gives a right to another person. That's why they are called
voluntary.

 Involuntary Vestitive Facts:

These are the facts that happen without the person's choice (or will).
The law gives the right to a person automatically, even if no one planned it.

Examples:
- Inheriting property after someone's death
- Getting ownership by court order
- Gaining title through adverse possession
- Becoming a legal guardian by law

8. CHARACTERISTICS OF TITLE:
The following are the main characteristics of title.

I. Legal Ownership:

84
Title shows who has the legal right over the property.
Example: If your name is written in property records, you have legal ownership.

II. Transferable:
A valid title can be transferred from one person to another through sale, gift, or inheritance.
Example: When you sell your house, the title moves to the buyer.

iii. Recognized by Law:

Title must be recognized by law. It should be based on legal documents or lawful possession.
Example: A registered sale deed is a legal proof of title.

IV. Evidence of Ownership:

Title acts as proof that a person owns something. It can be shown in court if needed.
Example: In a dispute, a person can show the title document to prove ownership.

V. Can Be Original or Derived:

A title can be original (first ownership) or derived (from someone else).
Example: You build a house on your own land (original title), or you buy land from someone
else (derived title).

VI. Can Be Challenged in Court:

If the title is not clear or is disputed, it can be challenged in a court of law.
Example: If two people claim the same land, the court will

VII. Based on Facts or Law:

A title can arise from legal documents, possession, inheritance, or operation of law.
Example: A person gets land after a court order — their title is based on law.

9. CONCLUSION:
85
 Title in law means the legal right of ownership over property. It must be lawful, transferable,
and recognized by law. Titles can be original or derived, and formed through voluntary (or
involuntary acts. A valid title ensures clear ownership and protects against legal disputes or
claims from others.

Q NO 14 Write a detailed note on the concept of Liability also explain different kinds of
liability?

1. INTRODUCTION:
Liability means being legally responsible for something, especially if it causes harm or loss to
someone else. In law, when a person or a company does something wrong or careless, and it
affects others, they may have to pay for the damage. For example, if someone causes an accident,
they can be held liable and might have to pay for the injuries or repair costs. Liability helps
ensure that people act responsibly and follow the rules.

2. MEANING OR LIABILITY:
According to Salmond: "Liability is the bond of necessity that exists between the wrongdoer and
the remedy of the wrong."

3. MEANING OF STRICT LIABILITY:

According to Salmond: "Strict liability is imposed for activities that are inherently dangerous,
regardless of the care taken."

4. DEFINITION OF STRICT LIABILITY:

According to Fleming: "Strict liability applies when harm results from dangerous activities, and
the law does not require proof of negligence or intent to harm."

5. MEANING OF VICARIOUS LIABILITY:

According to Salmond: "Vicarious liability arises when a person is held responsible for the
actions of another, typically due to a relationship of control or authority, such as that of an
employer and employee."

6. DEFINITION OF VICARIOUS LIABILITY:

86
According to Goff & Jones: "Vicarious liability is imposed to ensure that employers bear
responsibility for the actions of their employees, as employers control the work environment and
benefit from the work."

7. KINDS OF LIABILITY:
I. Civil Liability:
This means a person has to pay money (damages) or provide some remedy when they harm
someone's rights, like in a car accident or breaking a contract.
Example: If a person breaks a contract or causes a car accident, they may have to pay damages.
Case Law: Donoghue Stevenson (1952)
Held: The manufacturer was held liable for harm caused by a defective product, even without a
direct contract.

II. Criminal Liability:

This is when a person is punished by the state (like jail or fine) for committing a crime such as
theft, murder, or fraud.
Example: If someone commits a crime like theft or murder, the state can punish them with jail or
a fine.
Case Law: R v. Dudley and Stephens (1884)
Held: The court held them criminally liable for murder, even though they claimed it was
necessary for survival.

III. Absolute Liability:

Similar to strict liability but even stronger there are no excuses or defenses. If damage happens,
the person or company is fully responsible.
Example: If a factory's gas leak causes harm, the company is fully responsible with no excuses.
Case Law: M.C. Mehta v. Union of India (1987) Oleum Gas Leak Case.
Held: The court established absolute liability for industries engaged in hazardous activities—no
exceptions allowed.

IV. Strict Liability:

87
I. Introduction:
Strict liability is a legal rule where a person is held responsible for the damage or harm caused by
their actions, even if they were not negligent or at fault. This mostly applies when someone is
involved in dangerous or risky activities.
ii. Key Point: No need to prove fault if harm happens, the person is liable.
Example: If a chemical factory accidentally leaks gas and it causes injury to people nearby, the
factory will be held liable even if they took all precautions.

II. Bases of Strict Liability

✓ Dangerous Things:
If someone keeps or uses dangerous materials (like chemicals, gas, explosives) and they cause
harm, the person is liable even if there was no fault.

✓ Escape and Damage:

If the dangerous thing escapes from a person's land or control and causes damage to others, strict
liability applies.
✓ No Negligence Needed:
The person can be held liable even if they were careful. What matters is the harm caused by a
risky activity.
IV. Case Law:
Rylands v. Fletcher (1868):
Facts: A mill owner built a water tank on his land. The water leaked and flooded a neighbor's
coal mine.
Held: The court said that the person who brings a dangerous thing onto their land must take full
responsibility if it escapes and causes damage even without negligence.

V. Vicarious Liability:
Introduction:
Vicarious liability is when one person is held responsible for the actions of another, especially in
employer-employee relationships. If an employee does something wrong while doing their job,
the employer can be held legally responsible.
II. Key Point:

88
Liability is based on relationship, not personal fault.
Example: If a driver working for a delivery company hits someone with the van during work
hours, the company (employed) is responsible not just the driver.
Bases of Vicarious Liability:
Respondent Superior: (Let the master answer)
This legal principle means that an employer is responsible for the acts of an employee done
during the course of employment.
Relationship:
Vicarious liability arises from certain relationships like employer and employee, principal and
agent, etc.
Course of Employment:
The wrongful act must be done while the person (e.g., employee) was performing their job or
duty.
Case Law:
State of Rajasthan v. Vidhyawati (1962)
Facts: A government driver caused an accident while driving a jeep for official work.
Held: The government was held vicariously liable for the driver's negligence because he was
doing his official duty at the time.

8. DIFFERENCE BETWEEN STRICT LIABILITY & VICARIOUS LIABILITY:

1. Meaning Advocate
Strict Liability: A person is responsible for harm caused by their actions, even if they were not at
fault or careless.

Vicarious Liability: A person (usually an employee) is held responsible for the wrongful act done
by another person (like an employee).

III. Based On
Strict Liability: Based on the nature of a dangerous or risky activity.

Vicarious Liability: Based on a relationship, like employer and employee.

89
III. Arises When
Strict Liability: Arises when harm is caused by a dangerous act or material, even without
negligence.
Vicarious Liability: Arises when an employee does something wrong during the course of their
job.

IV. Application
Strict Liability: Applied in cases like environmental damage, gas leaks, or use of dangerous
substances.
Vicarious Liability: Applied in employment settings where an employee causes harm while
doing their work.

V. Example
Strict Liability: A chemical factory leaks gas and harms people the factory is liable. (M.C. Mehta
v. Union of India)
Vicarious Liability: A delivery driver hits someone while working the employer is liable. (State
of Rajasthan v. Vidhyawati

9. CONCLUSION:
To conclude I can say that, liability means being legally responsible for one's actions or the
actions of others. It ensures that harm or loss caused to someone is properly addressed. Whether
civil, criminal, strict, or vicarious, the main aim is justice and fairness by holding the right person
or authority accountable under the law.

Q NO 14 EXPLAIN NEGLIGENCE AND ITS ELEMENTS.

1. INTRODUCTION:
Negligence means not being careful enough, which causes harm to someone. In law, a person is
negligent if they fail to act like a reasonable person would in the same situation. It is not done on
purpose but happens due to carelessness. For example, if a driver doesn't follow traffic rules and

90
causes an accident, it is called negligence. It helps the court decide who is responsible for the
damage.

2. MEANING OF NEGLIGENCE:
According to Winfield: "Negligence is the breach of a legal duty to take care which results in
damage to the claimant."

According to Sir Frederick Pollock: "Negligence is the omission to do something which a

reasonable man would do, or doing something which a reasonable man would not do."

3. DEFINITION OF NEGLIGENCE:

According to Salmond: "Negligence is the breach of a duty caused by omission to do something

which a reasonable man would do, or doing something which a prudent and reasonable man
would not do."

According to Black's Law Dictionary: "This failure to exercise the standard of care that a
reasonably prudent person would have exercised in a similar situation."

4. KINDS OF NEGLIGENCE:

1. Ordinary Negligence:
This is common carelessness where a person fails to take normal precautions. For example, a
shopkeeper forgetting to clean a wet floor, causing someone to slip and fall.

ii. Gross Negligence:

This is very serious carelessness. It shows a complete lack of care or concern for others' safety.
For example, a doctor performing surgery without sterilizing tools.

iii. Contributory Negligence:

91
This happen when the injured person is also partly responsible for the harm. For example, if
someone crosses a road without looking and gets hit by a speeding car, both may share the
blame.

iv. Comparative Negligence:

In this type, both the injured person and the other party are at fault, but the court decides how
much each person is responsible. The compensation is reduced based on the injured person's
fault.

v. Professional Negligence:
This occurs when someone in a professional role, like a doctor, lawyer, or engineer, fails to do
their job with proper care and skill, and someone gets harmed as a result. For example, a lawyer
missing an important deadline in a client's case.

5. ESSENTIALS OF ELEMENTS OF NEGLIGENCE:

i. Duty of Care:
The first thing is that the person must have a legal duty to be careful towards others in a certain
situation.
Example: A driver has a duty to follow traffic rules and drive safely to protect others on the road.

ii. Breach of Drug:

When the person fails to act carefully and does not fulfill their duty, it is called a breach.
Example: If the driver is using a mobile phone while driving and breaks a signal, that is a breach
of duty.

iii. Damage or Injury:

There must be real harm or loss suffered by another person because of the breach of duty.
Example: Due to the driver's carelessness, a pedestrian gets hit and injured.

iv. Causation: (Direct Connection)

92
The injury or loss must be directly caused by the person's careless act. It should not be because
of something else.

Example: If the pedestrian was healthy before and got injured only because of the accident, the
cause is clear.

v. Damage Must Not Be Too Remote:

The harm should be a natural and expected result of the carelessness. It must not be a rare or
unusual outcome.

Example: If someone gets hurt in the accident, that's expected. But if someone far away dies
from shock, it may be too remote.

6. THEORIES OF NEGLIGENCE:
I. Austin's Theory of Negligence
Austin defined negligence as the breach of a legal duty. According to him, if a person fails to
fulfill a duty that the law requires, it is considered negligence. This theory focuses only on
whether a legal rule was broken.

Criticism: It is too technical and legalistic. It does not consider the actual carelessness of the
person or their behavior in real-life situations.

II. Holland's Theory of Negligence

Holland said negligence is a failure to take proper care. It means not doing what a careful and
sensible person would do in a given situation.

Criticism: This theory is too general and lacks clarity. It does not clearly define when a person
becomes legally responsible or how much care is expected.

III. Subjective Theory:

93
This theory is based on the personal knowledge and state of mind of the person. It asks whether
the person knew that their set could cause harm and still did it. If yes, they are considered
negligent.

Criticism: It is hard to prove what someone was thinking at the time. This makes it difficult to
apply in many cases, as it relies on the person's inner thoughts.

IV. Objective Theory:

The objective theory focuses on the actions of the person, have acted against tasks which a
reasonable person would have acted upon. It is easy in that situation. If the answer is no, the
person is negligent.

Criticism: This theory does not consider personal circumstances, such as age, health, or
experience. It may lead to unfair results in some cases.

V. Check and LinkedIn View:

Click and LinkedIn described negligence as the failure to do something a reasonable person
would do, or doing something a reasonable person would not do, which results in harm to
another person.

Criticism: Although this practical and widely used, it is still based mostly on the objective
standard and may not cover all special situations.

VI. Reconciliation of Theories:

A fair understanding of negligence requires a mix of both subjective and objective theories. We
should consider what the person actually knew and intended, as well as whether their actions
match what a reasonable person would do. This combined approach helps courts make better and
more just decisions.

7. CONCLUSION:
In conclusion, negligence involves failing to take reasonable care, resulting in harm to others. Its
key elements include duty of care, breach, causation, and damage. Various types, like ordinary

94
and gross negligence, highlight the seriousness of carelessness. A balanced approach using both
subjective and objective theories ensures fair legal decisions.

Q NO 15 Briefly explain the concept of property and different modes of acquisition of

property?

1. INTRODUCTION:
Property refers to anything that can be owned, including land, buildings, or personal items. It can
be acquired in various ways, such as buying, inheriting, receiving as a gift, or creating something
new. Understanding these modes helps in managing and protecting one's possessions. In modern
times the term property includes all the rights which a person has it: his life liberty, reputation
etc.

2. MEANING OF PROPERTY:
According to Oxford Dictionary of Laws
"Anything that can be owned."

3. DEFINITION OF PROPERTY:
According to Black's Law Dictionary
"The Right to possess, use and enjoy a determinate thing."

4. CROSS REPERENCE:
Article 23, 24 of the Constitution of Pakistan 1973.

5. DERIVATION OF WORD PROPERTY:

The term "property" comes from the Latin word "proprietas," which means ownership. It
originally referred to a person's belongings or assets, emphasizing the concept of possessing
something.

6. CONCEPT OF THE PROPERTY:

95
In English jurisprudence, the concept of property refers to the rights and interests that a person
has in physical and intangible things. It is essentially about the legal relationships between
people concerning valuable items.

7. TYPES/KINDS OF PROPERTY:
Important kinds of the property.
Corporal Property:
Physical, tangible property that can be seen and touched.
Example:
House: A residential building where people live.
Car: A vehicle used for personal or commercial transportation.

Incorporated Property:

Intangible property that does not have a physical form but represents value or rights.

Example:
Patents: Exclusive rights granted for an invention, giving the patent holder the right to exclude
others from making, using, or selling the invention.
Copyrights: Legal rights granted to creators for their literary, musical, or artistic works, allowing
them to control the use and distribution of their work.

Moveable Property:
Property that can be moved from one location to another without altering its nature or value.
Example:
Furniture: Objects like chairs, tables, and beds that can be moved within a house or office.
Jewelry: Personal ornaments such as rugs, necklaces, and bracelets that can be worn and
transported.

Immovable Property:

96
Property that is fixed in one place and cannot be moved without altering or damaging it.
Example:
Land: A defined area of ground, which can include fields, plots, or estates.
Buildings: Structures such as houses, offices, and factories permanently constructed on land.

Real Property:
Land and any structures permanently attached to it, including both the physical land and the
rights associated with it.
Example:
Farm: An area of land used for agricultural purposes, including crops and livestock.
Commercial Building: Structures used for business activities, such as office buildings and
shopping centers.

Personal Property:
Any property that is not classified as real property typically includes moveable items and can be
either tangible or intangible.
Example:
Clothing: Wearable items such as shirts, pants, and shoes.
Electronics: Devices like phones, laptops, and televisions that can be used and transported.

8. MODES OF ACQUISITION OF PROPERTY:

Purchase:
Buying property involves paying money to the owner in exchange for the property. A legal
transfer of ownership takes place.
Example: ABC buys a house of 5 Marla against consideration amount one Crore.

Inheritance:
Property is passed down from someone who has died to their heirs or beneficiaries, usually
outlined in a will.

97
Example: When David's grandfather passes away, David inherits his grandfather's old watch
because it was mentioned in the will.

Gift:
Property is voluntarily given from one person to another without any payment in return.
Example: Sam's friend gives him a book as a gift on his birthday. Sam didn't pay anything for the
book.

Adverse Possession:
Acquiring property by living on and using it for a long period without the owner's permission.
There are legal conditions that must be met.
Example: Mike builds a small shed on a piece of unused land and uses it for 20 years. According
to the law, he can become the legal owner of that land.

Exchange:
Swapping one property for another, where each person gets the other person's property.
Example: Lily trades her toy car with Jack for his toy robot. Now Lily owns the robot and Jack
owns the car.

Finding:
Acquiring property by discovering it and, if the original owner cannot be located, it may legally
become yours after following certain procedures.
Example: Emma finds a $20 bill on the street and tries to find its owner. After some time, if no
one claims it, she can keep the $20.

Occupation:
Taking possession of property that has no clear owner or has been abandoned.
Example: James finds an old, abandoned chair left on the sidewalk with a "free" sign and takes it
home. Now Jamie owns the chair.

Creation:

98
Acquiring property by making or creating something new with your own effort and resources.
Example: Max makes a clay pot in art class. Since he made it himself, Max owns the pot.

Prescription:
Acquiring a legal right to use someone else's property through continuous and open use over a
long period.
Example: For many years, residents of a neighborhood have used a shortcut through a privately-
owned field to get to a park. Over time, they gain a legal right to continue using this path.

Accession:
Acquiring ownership of additional property that is naturally or artificially added to existing
property.

Example: abc plants a tree on her property. Over time, the tree grows and its branches extend
over the fence, dropping fruit in her yard. The fruit belongs to abc because it grew on her tree.

9. MODES OF DIVESTED OF PROPERTY:

A person may divest of his property in any of the following ways:
i. contract: That is by sale, assignment to someone.
ii. By giving in trust.
iii. By operation of law i.e. by death or insolvency.
iv. By forfeiture or attachment or acquisition under law.

10. CONCLUSION:
To conclude we can say that, property refers to anything that can be owned, whether it's land, a
house, or personal items. Different ways to acquire property include purchasing, inheriting,
receiving as a gift, finding, occupying, abandoned items, creating, exchanging, adverse
possession, prescription, and accession. These methods define how ownership is transferred or
established.

Q NO 16 SUBSTANSIVE AND PROCEDURAL LAW.

99
1. INTRODUCTION:
Laws are the set or system of rules established by the government for the citizens to obey and
also to govern their behaviors and conduct. They are usually enforced by governmental
institutions. The mechanism of the law ensures that all citizens abide by them and that society
can function safely without any obstructions. In India, the laws are made by the Indian
Parliament, implemented by the executives and interpreted and enforced by the judiciary.
Law can be further divided into two broad categories –
I. Substantive laws and
II. Procedural laws.
They form the two major branches of law.
Substantive laws are the statutory laws passed by the legislature.
Whereas, procedural laws comprise the rules and processes which any court follows for hearing
and determining the cases.
Procedural laws are also known as ‘Adjective laws. In absence of substantive laws, procedural
laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied
fairly and properly. Both the laws are equally important and one could not be applied effectively
in absence of the other law.
Substantive and procedural laws are two essential branches of the legal system. Substantive law
defines the rights and duties of individuals, while procedural law outlines the methods and
processes for enforcing those rights. Together, they ensure justice by guiding both the legal
principles and the procedures to uphold them.

2. MEANINGS:
Both the substantive laws and the procedural laws are two related sets of legal systems and are
interdependent on each other.
 Substantive laws are the essential laws that govern any particular field and declare the
rules and lay down the principles. The Pakistan Penal Code (PPC) which lays down
different types of crimes and defines their respective punishments is one of the examples
of substantive laws in Pakistan.

 Procedural laws are the set of procedures to be followed for making, administering and
enforcing substantive laws. For example, the Code of Criminal Procedure (CrPC) defines
the procedures to be followed in criminal proceedings in Pakistan.

100
3. DEFINITION OF SUBSTANTIVE LAW:
According to Salmond:
"Substantive law is defined as the law that deals with the rights and duties of individuals among
themselves, as opposed to procedural law, which deals with the means by which substantive law
is enforced."
This means that substantive law focuses on the actual legal rights and obligations of people."

4. DEFINITION OF PROCEDURAL LAW:

According to Salmond
"The procedural law is "the body of legal rules that govern the process for determining the rights
of parties."
In simple terms, procedural law outlines the steps and methods used in courts to enforce legal
rights and obligations."
5. SOURCES OF SUBSTANTIVE LAW:
The Substantive Laws are usually derived from:
I. the principles in Common laws which already exist, codified statutory laws
II. Constitution
III. judicial precedents in cases with similar facts and circumstances.
Substantive laws are also derived from various treaties that dictate the conditions of the law. One
such example is the regulations and directives of the European Union followed by trade treaties,
rules of the WTO and bilateral treaties.
Other sources of substantive laws include:
 The writings of legal scholars
 Edicts from a king/ ruler;
 “Sharia law” in religious books and edicts in the case of some of the Islamic countries.

6. TYPES OF SUBSTANTIVE LAW:

The substantive laws define both the rights and the wrong and the punishment or remedy for it.
The laws include all categories of Public and Private law also including both substantive civil
and criminal laws.
a- Substantive civil laws

101
Substantive civil laws are the laws which deal with disputes between any individuals,
organizations or between both of them where the victim is entitled to compensation. Using
substantive civil laws, the courts find out whether the legal rights of the plaintiff have been
violated or not.
Examples
Some examples and functions of substantive civil laws in Pakistan include:
Law of Contracts such as the Contract Act, 1872 defines what are the essential elements and
conditions required to enter into any contract.
Substantive civil laws also include any private wrong caused to anyone or ‘Tort’. The Law of
Torts is also an example of substantive civil laws. However, the law of Tort in Pakistan has
evolved from that of its English counterpart and is not codified.
b- Substantive criminal laws
Substantive criminal laws deal with criminal offences and the punishments to be awarded for
each of these criminal offences. A criminal prosecution starts after the defendant violates any
criminal statute. The primary purpose of substantive criminal laws is to provide punishment to
the convict while compensation may be provided to the victim depending on the situations.
Using substantive criminal laws, the court finds out whether the accused is guilty or not and if
found guilty, what should be the punishments for the criminal offence.
Examples
Various penal offences and their respective punishments have been described in the
Pakistan Penal Code (PPC). It also defines the conditions for various penal offences such
as ‘Murder’, ‘Rape’, ‘Abduction’ etc.
Domestic Violence Act, 2005; the Juvenile Justice (Care and Protection of Children)
Act,2000.

7. SOURCES OF PROCEDURAL LAW:

Procedural laws are extremely important in the administration of justice. They function as the
means by which substantive laws should be implemented.
The primary source of procedural laws is the Constitution. Other sources of procedural
laws include:
➢ Statutes enacted by the legislature;
➢ Written regulations for employees of various law enforcement agencies. These

102
regulations cannot be considered as laws but violating them results in taking internal
actions.
➢ Various rules, procedural guidelines and rulings of cases laid down by the Supreme
Court.

8. TYPES OF PROCEDURAL LAW:

➢ Civil procedural laws or laws of civil procedure and
➢ Criminal procedural laws or laws of criminal procedure

a) Civil procedural law:

These procedural laws govern how a civil suit or case should commence and the procedures
to be followed during the case. They also dictate:
➢ the nature of pleadings and statements of case, motions or applications;
➢ available remedies for civil cases;
➢ the orders to be passed in civil cases;
➢ the limiting time for appeal and the manners of how the cases are to be disposed of;
➢ the conduction of civil trials;
➢ the process for passing judgement, and
➢ how the courts, judicial officers and clerks must function.
b) Criminal procedural law:
While substantive criminal laws deal with punishment for criminal offences against public
and private individuals.
Procedural Criminal Law can further be divided into two stages or phases:
➢ the investigatory stage; and
➢ the adjudicatory stage.

103
9. EXAMPLES OF SUBSTANTIVE LAW IN PAKISTANS:
Here are some examples of substantive law in Pakistan.
Pakistan Penal Code (PPC)
Defines various crimes like theft, murder, and fraud, along with the penalties for these offenses.
Contract Act, 1872
Regulates the formation, execution, and enforcement of contracts between parties.
Family Laws
Includes laws like the Muslim Family Law's Ordinance, which governs matters related to
marriage, divorce, and inheritance.
Property Law
The Transfer of Property Act, 1882, deals with the transfer of property rights, including sale,
mortgage, lease, and gift.

10. EXAMPLES OF PROCEDURAL LAW IN PAKISTANS:

Here are some examples of procedural law in Pakistan.
Code of Criminal Procedure (CPC), 1998: Outlines the procedures for conducting criminal trials,
including the investigation, arrest, trial, and sentencing processes.

Cost of Civil Procedure (CPC), 1998: Provides the rules and procedures for civil litigation,
including how lawsuits are filed, the conduct of trials, and the execution of judgments.

Law of Evidence (Omune-Shahadab), 1994: Regulates the admissibility of evidence in court,

including how evidence is presented, examined, and evaluated during legal proceedings.

Supreme Court Rules, 1991: Governs the procedures for cases heard in the Supreme Court of
Pakistan, including filing appeals, conducting hearings, and issuing judgments.

11. DIFFERENCE BETWEEN SUBSTANTIVE AND PROCEDURAL LAW:

Following are the key differences between substantive and procedural law.
Definition:

104
Substantive Law: Defines what is legal and illegal. It tells us what rights and responsibilities we
have. For example, it specifies what actions are considered theft or assault.

Procedural Law: Describes the processes to enforce these right and responsibilities. It includes
rules for how to file a lawsuit, how trials are conducted, and how appeals are made.
Purpose:
Substantive Law: Exquisites the rules and principles that determine what people can and cannot
do. It's about the substance of the law, such as defining crimes, and civil wrongs.

Procedural Law: Provides the method for enforcing substantive laws. It's about the procedures or
steps needed to bring a legal action or resolve disputes in court.

Scope:
Substantive Law: Covers various areas like criminal law (e.g., what constitutes a crime), civil
law (e.g., contracts, property rights), and family law (e.g., divorce, child custody).

Procedural Law: Includes rules related to the legal process, such as how to file a complaint,
conduct a trial, and how evidence is handled.

Focus:
Substantive Law: Focuses on the content or substance of legal rights and obligations. It tells you
what is legal and what is not.

Procedural law: Focuses on the procedures or steps for implementing and enforcing substantive
law, it tells you how to navigate the legal system.

Examples:
Substantive Law: Laws defining theft, assault, or breach of contract. For example, the law
specifies what constitutes theft and the penalties for committing it.

Procedural Law: Rules for conducting a trial, such as how to submit evidence or how a jury is
selected.

105
Applications:
Substantive Law: Applies to individuals and defines their rights and duties. For instance, it
defines an individual's right to pay property.

Procedural Law
Applies to how courts and legal professionals carry out their duties. For instance, it outlines the
steps a plaintiff must follow to file a lawsuit.

Creation:
Substantive Law: Created by legislative bodies like Congress or Parliament, which pass laws
defining legal rights and duties.

Procedural Law
Often established by courts or administrative agencies, which create rules for how legal
processes should be carried out.

Impact
Substantive Law: Directly affects the outcome of a legal case by defining what is right or wrong.
For example, if someone is charged with theft, substantive law determines if they are guilty.

Procedural Law
Affects how a case is handled in court. It impacts the efficiency and fairness of the legal process
but doesn't determine the case's outcome directly.

Changeability
Substantive Law: Changes less frequently, as it involves fundamental principles and rights.
Change usually conventionally legislates amendments or new laws.

Procedural Law

106
May change more often due to legal reforms, judicial decisions, or administrative updates that
improve or alter court procedures.

Relation
Substantive Law: Provides the foundational rules that define what is legally permissible or
impermissible.

Procedural Law
Provides the structure and steps to apply and enforce those foundational rules in a legal setting.

12. CONCLUSION:
Substantive and procedural laws are integral to the legal system, each serving distinct yet
complementary roles. Substantive law provides the framework for defining legal rights and
obligations, while procedural law ensures that these rights are enforced through fair and orderly
legal processes. Understanding the interplay between these two branches is crucial for
comprehending how the legal system functions effectively.

Q NO 17 EXPLAIN PUNISHMENT AND ITS THEORIES.

1. INTRODUCTION:
Punishment means giving a penalty to someone who breaks a rule or law. It is used to teach the
person that what they did was wrong and to stop them from doing it again. In Pakistan, the law
for punishment is written in the Pakistan Penal Code (PPC). The PPC tells us which actions are
crimes and what punishment they should get. The goal of punishment is to keep peace in society
and make sure people follow the law.

2. CROSS REFERENCE:
Section 53 of PPC

3. MEANING OF CRIME:

107
Legal Meaning
"Every offense punishable by law."

4. DEFINITION OF CRIME:
- According to Black's Law Dictionary: "Crime is an act committed or omitted in violation of a
public law, either forbidding or commanding it."

5. DEFINITION OF PUNISHMENT:
According to Black's Law Dictionary: "Punishment is any penalty given by law to a person who
is guilty of a crime or wrong act."
According to H.A. Hartt: "Punishment is pain or loss given by the law to someone who broke the
law."

6. DEFINITION OF CRIMINAL JUSTICE:

According to Prof. Marshall Clinnard, "Criminal justice is the system used by society to control
crime and punish lawbreakers."

7. CHARACTERISTICS OF PUNISHMENT:
Following are the characteristics of punishment:
I. Given for a Wrong Act
Punishment is always a response to an act that goes against the law or moral rules. It's not given
without reason. For example, someone who steals will face punishment for breaking the law.

II. Given by Authority

Punishment must be given by a person or institution with legal power, like a judge, police
officer, or a parent (in some situations, like at home). It cannot be given by just anyone because
there must be a fair process.

III. Legal and Fair

108
The punishment must be lawful, meaning it follows the rules and laws of the country. The
punishment should also be fair, meaning it fits the crime. For example, stealing a small amount
shouldn't lead to the same punishment as a serious crime like murder.

IV. Causes Pain or Loss

Punishment often brings some form of discomfort or disadvantage. It could be physical, like
going to jail, emotional, like public shame, or financial, like paying a fine.

V. Purpose Is to Stop Wrongdoing

The goal of punishment is to prevent further crimes. It teaches the person who committed the
wrong act not to do it again. Also, it acts as a warning to others that breaking the law will have
consequences.

8. PURPOSE OF PUNISHMENT / OBJECT OF CRIMINAL JUSTICE:

Following are the objects of punishment.
Deterrence (Stop Future Crimes):
One of the main purposes of punishment is to stop people from committing crimes. When people
see that criminals are punished, they are less likely to do the same thing.

Rehabilitation (Change Behavior):

Punishment aims to help criminals change their behavior. It tries to teach them to follow the law
and become better members of society, such as through counseling or education.

Retribution (Justice for the Victim):

Punishment serves to give justice to the victim. If someone is hurt or harmed by a crime, the
wrongdoer is punished to make things right and show that crime is not acceptable.

9. THEORIES OF PUNISHMENT
Retributive Theory: (Theory of Revenge)
1. Introduction:

109
This is one of the oldest theories of punishment. It is based on the idea that the offender must
suffer because he has done wrong. Society feels justice is done when the criminal is punished
according to his crime.

2. Explanation:
"an eye for an eye, a tooth for a tooth". The focus is not on reforming or preventing, but on
giving back what the criminal deserves. It satisfies the emotions of the victim and society. The
idea is to balance the scales of justice."

Example: If a person intentionally kills another person, he should be hanged or imprisoned for
life.
Purpose: To give justice to the victim and satisfy the public's sense of justice.
Case Law: Chulam Muskila vs The State (PLD 2006 SC S37)
The Supreme Court upheld the death sentence for intentional murder as the offender deserved the
highest punishment.

Deterrent Theory:
Introduction: This theory is based on the principle that fear of punishment can stop people from
committing crimes. It aims to protect society by discouraging both the criminal and others.

Explanation: Punishment under this theory is meant to be a warning to all. The idea is that strict
and harsh punishments will make others afraid to commit crimes. It has two types:
 Individual deterrence: to stop the same person from repeating the crime.
 General deterrence: to warn the public at large.

Example:
Public hanging of a rapist sends a message to society that sucks with not being tolerated.
Purpose:
To create fear and reduce crime rates by making an example out of criminals.
Case Law:
Safdar Ali vs. The Crown (PLD 1985 Lahore 48)

110
Harsh punishment was awarded to deter others from committing similar crimes.

Preventive Theory:
Introduction:
This theory focuses on preventing the criminal from committing more crimes by disabling him.
Explanation:
This theory believes that removing the criminal from society is the best way to keep others safe.
It does not believe in revenge or reform but focuses on protection of society. It includes
imprisonment, death sentence, or cancellation of driving/license etc., to prevent further crime.
Example:
A repeat offender (habitual criminal) is given a long jail term to prevent him from causing more
harm.

Purpose:
To protect society by keeping dangerous people away.
Case Laws:
The State vs Muhammad Hanif (PLD 1970 SC 53)
The court emphasized on imprisonment to prevent a repeat of dangerous criminal acts.

Reformative Theory:
Introduction:
This theory believes that criminals can be reformed and turned into good citizens. It focuses on
changing the character of the criminal.

Explanation:
Instead of punishing harshly, this theory supports education, counseling, vocational training, and
moral development. It is mostly used for young offenders or first-time criminals who committed
crimes due to poverty, bad company, or ignorance.

Example:

111
A juvenile (under 18) caught stealing is sent to a rehabilitation home instead of jail.

Purpose:
To change the thinking of the criminal and help him become a useful part of society.

Case Law:
Shabri Hussein vs The State (1995 SOME 12:9)
The Supreme Court reduced the sentence due to the young age of the offender and emphasized
reform.

Compensatory Theory (Restorative Justice)

Introduction:
This theory focuses on compensating the victim or his family instead of punishing the criminal
only. It aims to restore justice between both parties.

Explanation:
The idea is that the criminal should pay for the harm or loss caused to the victim. This is
especially seen in Islamic law, where in cases of Qatl (murder) or hurt, the offender may pay
Diyar (blood money) or Arsh (injury compensation) to the victim's family, sometimes as part of
a compromise.

Example:
In a murder case, if both parties agree, the accused may pay Diyar instead of facing a death
sentence.

Purpose:
To give relief and justice to the victim, and restore peace in society.

Case Law:
Muhammad Siddique vs The State (PLD 2002 SC 620)

112
The court allowed compromise and Diyar payment under the provisions of Islamic law.

10. CONCLUSION:
The purpose of punishment is to maintain law and order in society. It stops crimes, gives justice
to victims, and helps reform offenders. Different theories like retributive, deterrent, preventive,
reformative, and compensatory guide the punishment system. Each has a unique goal, but all aim
to protect society.

Q NO 18 EXPLAIN [Link] KINDS

1. CONCEPT OF EVIDENCE:
Evidence is a testimony which is used to prove or disprove the truth in a fact. It is testimony
medium of proving documents and statements.
2. APPLICABLE LAW:
o Article : 2(c) and 70 to 77 of Qanun-e-Shahadat Order 1984
3. MEANING OF EVIDENCE:
o Black’s Law Dictionary 7th Edition

Evidence is something which proves or disproves any fact.

4. DERIVATION OF TERM EVIDENCE:

Evidence is derived from Latin term Evidentia and a French term Evidence, which means to
prove or to disprove a fact.
5. DEFINITION OF EVIDENCE:
o Article: 2 (c) Qanun-e-Shadadat Order 1984
Evidence includes all statements and documents produced for the inspection of court.

113
6. EVIDENCE AS ELEMENT OF JUDICIAL PROCEEDINGS:
Evidence is an important element of judicial proceedings, without which justice cannot be done.
i. Pliant
i. Written statement
ii. Summons
iii. Framing of issues
iv. Evidence
v. Arguments by lawyers
vi. Judgments
vii. Execution

[Link] AND PROOF:

Proof is the effect of evidence given by a witness.

[Link] OF EVIDENCE:
The following are two basic kinds of evidence u/ Art:2 (c) of QSO

i. Oral evidence
ii. Documentary evidence

There are some other kinds too;

a. primary and secondary evidence
b. judicial and extrajudicial evidence
c. direct and circumstantial evidence
d. personal and real evidence
e. original and hearsay evidence

114
I. ORAL EVIDENCE:
Art: 2 (c) (i) of Qanun-e-Shahadat Order 1984:
All the statements made or required to be made before the court by witness upon any matter
under inquiry.

II. DOCUMENTARY EVIDENCE:

Munir Ahmed vs. State of Rajasthan:
When a document is produced u/Art: 2(c)(ii) of Qanoon-e-shahadat Order 1984, in a case for the
inspection of the court then it becomes the documentary evidence.

i. What is Document?
Sec: 29 of Pakistan Penal Code 1860

Document means any matte expressed or described on any substance by means of letters, marks
and figures.
 PRIMARY EVIDENCE:
Art:73 of Qanun-e-Shahadat Order 1984:
Primary evidence means the document itself produced for the inspection of the court.

 SECONDARY EVIDENCE:
Art:74 of Qanoonn-e-Shahadat Order 1984:
Secondary evidence is the evidence which may be given in absence of the original document. It
is the production of better evidence given in the court.
Example: Photocopy of original registered deeds produce in the court.

 JUDICIAL EVIDENCE:
Judicial evidence is that which can be produce in the court room and which consist of all the
facts essential for the knowledge of court.
Example: “A” shoots “B” with a 30 bore pistol. The pistol is produced before the court as a
judicial evidence in this case.

115
  EXTRAJUDICIAL EVIDENCE:
When any document or testamentary material cannot be produced before the court, it is called
extrajudicial evidence.
Example: Footprints at the place of occurrence shall be an extrajudicial evidence.

 DIRECT EVIDENCE:
Art: 71 of Qanoon-e-Shahadat Order 1984:
Oral evidence must in all cases be direct and the direct evidence must be such:

i. Evidence must say:

That he saw it, if the matter must be seen.
ii. Evidence must say:
That he heard it, if the matter must be heard.
iii. Evidence must say:
That he felt it, if the matter must be observed by any of the 5 senses.

 CIRCUMSTANTIAL EVIDENCE:
Circumstantial evidence is the evidence which relates to a series of facts other than the fact in
issue but which are closely connected with them.

 PERSONAL EVIDENCE:
In personal evidence the person whose right has been violated deposes evidence of violation of
his right.

 REAL EVIDENCE:

 ORIGINAL EVIDENCE:
It is that which possesses an independent probative force of its own. For example, the witness
states that he has seen or heard with his own eyes or ears.

116
i. The original document introduced to a trial.
ii. First hand and the best evidence submitted to a case.

 HEARSAY EVIDENCE:
When the witness has not seen or heard the evidence, it is called hearsay evidence.

 EXPERT’S EVIDENCE:
When an expert of any department deposes his opinion before the court. It is called an expert’s
evidence.
i. Examples
a. Opinion of doctor of forensic
b. Postmortem report
c. Medico legal report

 RULE OF BEST EVIDENCE:

It is the duty of parties to produce the best available evidence in the court.
As it is obvious from the rule;
Res Ipsa Loquitur
“The things speaks for itself.”

i. Presumption Attach with Non-production of Best Availbale Evidence

Art: 129 of Qanun-e-Shahadat Order 1984.

That if that evidence is not produced, would go against the party who withholds.

MODE OF VALUATION: -
This is also called probative force of the evidence:
a. Conclusive Proof - Child below 7 years is innocent.
b. Presumptive Proof- A person in possession of property is owner.
117
c. Exclusive Proof - The execution of a will can be proved only be the testimony of the one
of the attesting witness
d. Insufficient Proof - two witnesses in proving offence of Zina. Etc.

PRODUCTION OF EVIDENCE:
An evidence when it is produced in the court must be evaluated the same.

PROBATIVE FORCE OF EVIDENCE:

Probative force of evidence is to the weigh the value of evidence produced in the court.

RULES OF PROBATIVE FORCE:

The following are the five rules of probative force of evidence:

i. Conclusive proof
ii. Presumptive proof
iii. Exclusive proof
iv. Insufficient proof
v. No proof

 CONCLUSIVE PROOF OF EVIDENCE:

It consists of the facts which cannot be contradicted. It shall not allow any evidence to be
produced in the court for the purpose of disproving it.
i. Relevant Presumptions:
In conclusive proof irrebuttable presumptions are raised.
ii. Example:
Art: 128 of Qanoon-e-Shahadat Order 1984

118
If a child is born within 280 days after the dissolution of marriage and the mother remains
unmarried, shall be conclusive proof of the legitimacy of child.
Sec: 82 of Pakistan Penal Code 1860
A child under the age of seven years is presumed by law to be incapable of committing any
offence.

 PRESUMPTIVE PROOF OF EVIDENCE:

It means such proof which may be considered sufficient if there is no other proved fact to the
contrary
i. Relevant presumptions:
In presumptive proof rebuttable presumptions are raised.
ii. Example
Art: 129 of Qanoon-e-Shahadat Order 1984
The Court may presume the existence of any fact which it thinks likely to have happened.
It creates presumptions of fact which can be contradicted and proved contrary.

 EXCLUSIVE PROOF OF EVIDENCE:

In this rule certain facts alone are recognized as being the only evidence of certain other facts.
No other evidence is permitted by law without attesting witnesses.
i. Example
Attesting witness of a contract made in writing has exclusive proof.

 INSUFFICIENT PROOF OF EVIDENCE:

If law prescribes a certain amount of evidence for proving a fact, and the evidence produced does
not come up to the necessary standard. It is called insufficient proof.
i. Example
a. In English law one witness in a case of high treason is insufficient proof
b. In Indian law one witness in a case of will is insufficient proof
c. In Islamic law one witness in hudood cases is insufficient proof

119
  NO PROOF:
There are certain facts which can neither be produced nor acted upon, such proof is called no
proof.
Example: Hearsay evidence is no evidence

RULE OF BEST EVIDENCE:

Rule of best evidence means that best available evidence must be produced.

EXPLANAITON:
1) Direct Evidence -

It is also known as 'positive evidence'. Evidence given by direct witness / eyewitness is called
Direct Evidence. Direct Evidence is the testimony of a witness to the existence or non existence
of a fact or fact in issue. It is evidence of fact actually perceived by a witness with one of his own
senses.
Illustrations
A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye witness. A
sues B for breach of contract C deposes that he was present at the time of agreement entered into
between A and B witnessed. In this Example C is the direct witness/ Eye witness.

2) Indirect / Circumstantial Evidence -

In cases, where direct evidence is not available, then circumstantial evidence can be resorted to.
Circumstantial evidences is that which tends to establish fact in issue by proving another fact
which though does not itself conclusively establish that fact, affords and inference as to its
existence.

Relevant case law

1) A.C. Lagu vs State of Bombay AIR1960 SC 500, 1960 SCJ 779: The accused, in the instant
case was family doctor. He was tried for murder of is patient, a rich woman and sentenced to
death on the basis of the circumstantial evidence.

120
2) Kalua Vs. State Of U.P. AIR 1958 SC 180
n this case Kalua was charged with the murder of the deceased by shooting him a pistol. The
Circumstantial evidence proved was:

A) Few days before the killing of the deceased the accused had held out a threat against him.
B) A cartridge was found near the cot of the deceased.
C) A pistol was recovered from his house.
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the dead body was fired
from pistol produced by accused.
It was held that there could be no room for thinking in the circumstances established in this case,
that anyone else than the accused might have shot the deceased. He was convicted.

3) Real Evidence -
Real or material evidence is the evidence of fact brought to the knowledge of the Court by
inspection of physical object and not by information derived from the witness or documents, for
e.g. stolen property, weapons, etc.

4) Personal Evidence -
Personal evidence is an oral testimony of the witnesses, which is afforded by human agent by
way of disclosure or by voluntary signs.

5) Original Evidence -
Original evidence is that which a witness reports himself to have seen or heard through the
medium of his own senses for e.g. A says that he saw B murdered C with sword.

6) Hear-say Evidence -
It is also known as second hand or unoriginal evidence, a witness is merely reporting not what he
himself saw or heard but what he has learnt in respect of the fact through the medium of the third
person. It is a statement made by a witness of what he has been said and declared out of court by
a person and not before the court. Hearsay evidence is no evidence and is not admissible.

121
Illustration -
'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard ’D’ saying that
'D' saw 'A' with B's Cycle. Such evidence given by 'C' is not admissible on the ground that
testimony of C is hearsay evidence.

Hearsay Evidence means whatever a person is heard to say it includes:

1) A statement made by a person, not called as witness;
2) A statement contained or recorded in any book, document or record which is not admissible.
The hearsay witness may not be able to say correctly and completely the truth of his statement.
(General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain
exceptions to this rule see in detail Hearsay Evidence)

7) Primary evidence -

Primary evidence means the document itself produced for the inspection of the Court. (S. 62).
Illustration
A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if
B produces before the court, the sale deed, it is primary evidence.
Primary evidence is considered as the best evidence since it provides proof with certainty. That is
why law insists/requires first the primary evidence. The document may be in counter parts, and
then each counterpart is regarded as primary evidence. If the document is made by uniform
process like printing or lithography, each one constitutes the primary evidence.

8) Secondary evidence -
Secondary evidence means inferior or substituted evidence which itself indicates the existence
of more Original source of information (Sec. 63). Secondary evidence may be given in the
absence of the (better) primary evidence if proper explanation is given for such absence. Section
65 of the Evidence Act provides for circumstances in which secondary evidence is admissible.
According to Section 63 copies made and compared with the originals, or Photostat copies may
be treated as secondary evidence.

122
Following are the circumstances in which secondary evidence is admissible (Section 65).
1) The person in possession of the original is not within the reach of the Court.
2) If the original is in possession of the opposite party.
3) If the original is lost.
4) When original deed had already been admitted in the Court.
5) If Original is public document.
6) When the original is not easily movable; and
7) When the original consists of many accounts.

9) Oral Evidence -

All statement which the Court permits or requires to be made before it by witnesses, in relation
to matter of fact under inquiry; such statements are called Oral evidence;

10) Documentary Evidence -

All document including electronic records, produced for the inspection of the Court, such
documents are called Documentary Evidence.

The expression 'document' is defined in section 3 of the Evidence Act, as follows:

“Document”.—“Document” means any matter expressed or described upon any substance by

means of letters, figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.

Illustrations
Writing is a document
Words printed, lithographed or photographed are documents;
A map or plan is a document
An inscription on a metal plate or stone is a document;

123
A caricature is a document.

11) Judicial Evidence -

It is evidence received by courts of justice in proof or disproof of facts, the existence of which
comes in question before them. Judicial Evidence is a species of the genus evidence and is for
the most part nothing more than natural evidence, modified by rule of positive law.

12) Non-judicial Evidence -

Evidence given in the proceeding before the Magistrate or officer not in a Judicial capacity but in
an administrative one, is non Judicial evidence, e.g. evidence in proceedings u/s. 164 of Cr. P.C.
i.e. recording of confession and statements. (Confessions made to Police Officer are
inadmissible)
Quotations of jurisprudence

The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code.
Henry James Sumner

There are vogues and fashions in jurisprudence as in literature and art and dress.
Benjamin N. Cardozo

Besides a happy policy as to civil government, it is necessary to institute a system of law and
jurisprudence founded in justice, equity, and public right.
Ezra Stiles

We have a system of jurisprudence. You are innocent until proven guilty. You have a right to
counsel. And you have a right to hospitalization if you are ill. That is our system. And it's what
makes this country special and what makes this country great.
Andrew Cuomo

124
125