Review of article 302 of the penal code

Notorious, fearsome, confusing, but rather straightforward: Qatl-i-amd, Section 302 of the Pakistan Penal Code 1860 or simply; the Murder Act, is perhaps the best known criminal law provision in Pakistan. Regardless of its popularity, very few may be aware of its intricacies. This article is an attempt to highlight the flaws of this section and the extremely low threshold that governs it.

Qatl-i-amd or simply murder – the act itself is defined in Section 300 of the Pakistan Penal Code 1860. Section 302 simply contains the punishment. Therefore, the former is the focus. Article 300 defines murder as follows:

Anyone who, with intent to cause death OR with intent to cause bodily harm to any person, by doing an act which, in the ordinary course of nature, is likely to cause death, or knowing that his act presents such imminent danger that it is likely to cause death, causes the death of that person, is believed to commit qatl-i-amd/murder”

The scrupulous reader may have noticed something above: a flaw. Beyond the first seven words, the definition emphasizes the intent to cause “injury”, not the intent to cause death. The two basic elements that must be proven in order to convict a person of a crime are “actus reus » and “mens rea”. The first means “guilty act” and the second means “guilty mind”. With the omission of intent, the commission of the act alone is not enough to secure a conviction for that crime. This is a basic principle that all law students know well.

In order to prove murder, there must be an intent to cause that person’s death as well as the act of actually injuring that person – and that injury resulting in and subsequently causing that person’s death. However, our law seems to differ from the rest of the world. Section 300 of the Pakistan Penal Code 1860 focuses on intent to cause injury. “The knowledge of the accused is something to be inferred from the circumstances, because it is a state of mind, it is very difficult to prove otherwise. »

Let’s focus on what the Prosecutor must prove to secure a conviction. Four elements must be proven. These four elements have been established in the case of “Virsa Singh v. State of Punjab” 1958 SC 465. This case is found in the commentary to Section 300 of the Pakistan Penal Code of 1860.

First, the bodily harm. Second, the nature of the injury. Third, and most importantly, that there was an intent to cause that bodily harm. Once the first three elements have been proven, it must also be proven that the injury is sufficient to cause death in the normal course of nature.

I would like to draw your attention to the third element. It requires proof of intent to cause bodily harm. There is no mention of intent to kill, to kill and to prove that the accused intended to kill the victim. The focus is on the intent to cause injury. This is a major problem: an extremely low threshold for an offense punishable by death.

In effect, this provision negates the difference between manslaughter and murder. Section 318 of the Pakistan Penal Code of 1860 defines Qatl-i-khata (manslaughter) as “Whoever, without intent to cause death or harm to a person, causes the death of that person, either by mistake of act or mistake of fact, is deemed to have committed qatl-i-khata.”

The problem here is that an accused can say that he intended to hurt the victim, but did not intend to kill him. In other words, they could claim that the death resulting from the attack on the accused was neither foreseeable nor intended. Based on the definition of Qatl-i-khata above, this should constitute manslaughter and therefore fall under Section 318. Therefore, the case should not be tried under Sections 300 and 302. The lesser offense of section 318 applies.

However, if the same person were charged with Sections 300 and 302, their defense that they never intended to kill the person – and simply wanted to injure or incapacitate them – will fail, because the elements of the offense only requires the intent to cause injury to be proven, not the intent to cause death. This unfortunate ambiguity makes the law of murder and manslaughter loath to each other.

To reinforce my point, let’s go back to the Virsa Singh case and the fourth element. Specifically, once it is established that in the normal course of nature the injury would result in death, it will be “purely objective and inferential and has nothing to do with the intent of the offender.” This was accepted in judgment and this point follows the fourth element of the offence.

Therefore, if the intent to injure is proven and if it is further proven that in the normal course of nature that injury would result in death, this question is now objective and the intent to kill (the element main who to have to be established without an iota of doubt in all other jurisdictions) will be deducted. It is a horrifying reality, an extremely low threshold for an offense punishable by death.

Pakistan’s legal system is not free from flaws: an overhaul is long overdue and the murder law needs serious review and clarification. For now, the least that can be done is to ensure that the first investigation report (FIR) is filed honestly and after having correctly ascertained the facts. If a victim is shot at close range, it may still be fair to infer that the accused intended to die. However this is not always the case.

There are countless cases where the death was never intentional – even more so when the people named in the FIR were not present when the injury or death occurred. The death of a human being is a tragic event. But the death of any living being is no less a tragic event.

Invoking Sections 300 and 302 just because a death has occurred is the greatest tragedy of all. It does exactly the opposite of what a legal system is there to do, which is to secure its citizens.

About Norman Griggs

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