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LLB Notes Part I

English Jurisprudence
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am also very thankful to all the students who appreciated my work and received them
warmly. In these notes the law has been elaborated with the help of landmark judgments
which is delivered by the Hon’ble Courts and has been written for the examination point of
view and i hope that these notes will also be received warmly by the students and may led
to the success in the examination as well as in their profession.

The below-given notes prepared for the student of the LLB. The subject is very technical
subject and i have taken every step to ensure that these notes may fulfill the need of the
students, but there may be some shortcomings or flaws in it, so every suggestion for the
improvement of these notes will be warmly welcome.”

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Innovative Law Academy Lahore

Q # 01: Define jurisprudence? Explain practical value of
Jurisprudence.
1) Preface
The study of Jurisprudence started from Roman’s age and the Definition given by Roman jurists
not quite clear. Even every jurist has his own opinion about definition of jurisprudence and
limits of jurisprudence because Limits of jurisprudence relies upon nature of society of current
age. In French jurisprudence refers “Case Law” but today jurisprudence has broader sense as it
had understood in Austanian age. . Jurisprudence is basically the legal study of nature, study of
law, legal analysis of law and explanation of existing laws as well as analysis of moral, historical
and cultural values prevailed all over the world
2) Meaning of Jurisprudence
The word jurisprudence is derived from Latin Word “Jurisprudentia” which means “knowledge
of law” or “skills in Law”
Meaning in Black’s Law dictionary
The meaning of jurisprudence under black law dictionary is “Philosophy of Law”
3) Definition of Jurisprudence
Jurisprudence is a study of law and legal questions in which different laws are being analyzed
and explained

i. Austin’s Definition:
Austin defines jurisprudence as “the philosophy of positive law” positive law is such
law which has been laid down by a political superior for controlling the administrative
affairs.

A. Criticism on Austin’s Definition

Salmond’s criticism
The error in Austin’s definition is that he believes that a legal principle of a specific
time is only common in a single system of law and it cannot be dealt in general
jurisprudence

B. Definition of jurisprudence at Present

Modern jurisprudence began in the 18th century and it is focusing on the study of law
and legal questions of the present age furthermore, jurisprudence analyzing other
disciplines such as philosophy, psychology, economics etc. It believes that laws are a
product of the values of society
4) Divisions of Jurisprudence
Following are the division of jurisprudence. Details are as under:

1. General Jurisprudence
General jurisprudence is study and analysis of two or more laws which are common in
all systems of law in all over the world
2. Particular Jurisprudence
Particular jurisprudence is narrower than general jurisprudence and it is study of one
particular system of law of any country as well as area too
5) Periods of Jurisprudence
There is no unanimous (Mutfiqa) opinion regarding the different periods of jurisprudence. It
is being discussed under the following three heads.

1. Early period
In early period jurisprudence was based on moral and religious affairs which has
created confusion

2. Austinian period
Austin separated law from morality and defined both of two separately, that
jurisprudence is body of rules which had been enforced by the rulers of the state. At
that time ,scope of jurisprudence was limited to the study of the concept of positive
law

3. Modern period
At present ,there is a tendency to widen the scope of jurisprudence, present view is
that scope of jurisprudence can’t be limited
Jurisprudence analyzing other disciplines such as philosophy, psychology, economics
etc. It believes that laws are a product of the values of society

Modern view of P.B Mukherjee

Jurisprudence is analyzing political, social, economic and cultural ideas. It describes
the relation of a man with state and society

Modern view of Lord Radcliffe

Jurisprudence is a part of history, a part of economic and sociology, a part of ethics
and philosophy of life
6) Importance of Jurisprudence
Jurisprudence is basically a theoretical subject but it has a practical and educational value. The
purposes of jurisprudence have been narrated as under:

1. Remove the complexities of Law

Jurisprudence removes the complexities from the laws and it makes the laws more
understandable and effective. A lot of easements has been provided by jurisprudence

2. Solutions of the new problems

Jurisprudence is enabling the people to find out the solutions of their legal problems
and now people are coordinating with legal system instead of the wisdom of the past

3. Interpretation of Law
Jurisprudence is interpreting the laws which is helping the judges and lawyers to find
out the true meanings of the laws which has been passed by the different legislatures,
by providing the rules of interpretation

4. Training of Mind
Jurisprudence is conducting an indirect training of the minds of people to solve the
difficult legal provisions in legal way

5. Grip on legal language and grammar

Jurisprudence is helping in knowing the difficult language, grammar and difficult terms
which are used in field of law. It was not possible without the help of jurisprudence

6. Legal terminology
Jurisprudence is helping the legislatures and the lawyers to use the specific legal
terminology which is relieving them from mentioning a certain thing again and again
such as right, duty etc.

7. To study foreign Law

Jurisprudence is enabling a lawyer to study foreign law because fundamental
principles are generally common in all systems of Law

8. Importance of jurisprudence
Jurisprudence is basically a theoretical subject but it also has a practical and
educational value. The practical value or purposes of jurisprudence is to remove
problem from society
7) Preclude
Jurisprudence is the study of law as well as study of science and philosophy of law. There are
different methods to approach it. The true purpose of the study of jurisprudence should not be
confined to the study of law alone, it includes the study of social, economic, political and
philosophy of life. Modern jurisprudence began in the 18th century and it is focusing on the
study of law and legal questions of the present age
Q # 02: Define jurisprudence and explain the various kinds
of jurisprudence.
1) Preface
The study of Jurisprudence started from Roman’s age and the Definition given by Roman jurists
not quite clear. Even every jurist has his own opinion about definition of jurisprudence and
limits of jurisprudence because Limits of jurisprudence relies upon nature of society of current
age. In French jurisprudence refers “Case Law” but today jurisprudence has broader sense as it
had understood in Austanian age. Jurisprudence is basically the legal study of nature, study of
law, legal analysis of law and explanation of existing laws as well as analysis of moral, historical
and cultural values prevailed all over the world
2) Meaning of Jurisprudence
The word jurisprudence has been derived from Latin Word “Jurisprudentia” which means
“knowledge of law” or “skills in Law”
Meaning in Black’s Law dictionary
The meaning of jurisprudence under black law dictionary is “Philosophy of Law”
3) Definition of Jurisprudence
Jurisprudence is a study of law and legal questions in which different laws are being analyzed
and explained

i. Austin’s Definition:
Austin defines jurisprudence as “the philosophy of positive law” positive law is such
law which has been laid down by a political superior for controlling the administrative
affairs.

A. Criticism on Austin’s Definition

Salmond’s criticism
The error in Austin’s definition is that he believes that a legal principle of a specific
time is only common in a single system of law and it cannot be dealt in general
jurisprudence
B. Definition of jurisprudence at Present
Modern jurisprudence began in the 18th century and it is focusing on the study of law
and legal questions of the present age furthermore, jurisprudence analyzing other
disciplines such as philosophy, psychology, economics etc. It believes that laws are a
product of the values of society
4) Kinds of Jurisprudence
Following are the three kinds of jurisprudence

1. Analytical Jurisprudence
Analytical jurisprudence deals with the analysis of principles of law
It is not concerned with the past gradual development of jurisprudence and it is also
not concerned with the goodness or badness of law
But it’s main purpose is to analyze the law of the land which exists today

a) Analytical Jurists
Following are the jurists who have analytical approach regarding jurisprudence.
Jeremy Bentham, Austin, Sir William, Holland and Salmond are those jurists
who were founder of analytical school of thought

b) Scope of analytical jurisprudence

Following is the scope of analytical jurisprudence. And analytical jurisprudence
does:
i. Analysis of Law
ii. An analysis of legal right
iii. An analysis of other relevant legal concepts
iv. Study of source of Law
v. An analysis between civil law and other forms of law
vi. An analysis of the ideas of state, sovereignty and administration of
justice
vii. An analysis of the theory of legislation and judicial precedents
viii. An investigation of theory of legal liability in civil and criminal cases

c) Importance of analytical jurisprudence

The analytical jurisprudence is playing an important role in law because it
brought an accuracy in legal thinking and legal terminology has also been
provided by analytical jurisprudence and all irrelevant terminology has also been
excluded from law by analytical approach

2. Historical Jurisprudence
Historical jurisprudence deals with gradual development of law and it is the history
of the legal principles and beginning of legal system

a. Historical jurists
Following are the jurists who have historical approach regarding
jurisprudence.
Sevigne, Montesquieu and Rousseau are those jurists who were the founder
of historical school of thought

b. Scope of Historical Jurisprudence

Following is the scope of historical jurisprudence. And historical jurisprudence
deals with:
i. Law’s different forms from its beginning of time
ii. Origin of law and development of legal principles which were
necessary in legal system
iii. The reasons by which legal principles have been established

c. Importance of historical Jurisprudence

The historical jurisprudence is playing an important role in study of
law as It tells us that, law can’t be understand without knowing the
circumstances in which it had established

3. Ethical Jurisprudence
Ethical jurisprudence deals with the law as it ought (Chahiye) to be in an ideal
state. It investigates the purpose of law
Ethical jurisprudence defines the relation between law and ethical manners in
order to maintain the administration of justice

a) Ethical Jurists
Following are the jurists who have historical approach regarding
jurisprudence.
Bentham, Hobbes and Kant were the founder of ethical school of thought

b) Scope of ethical jurisprudence

Following is the scope of ethical jurisprudence. And ethical jurisprudence deals
with:
i. The Concept of Law
ii. The relation between Law and ethical manner
iii. Study of ethical manners in order to maintain administration of justice
5) Other kinds of Jurisprudence
At present, following are also other kinds of Jurisprudence:

1. Sociological Jurisprudence
Sociological jurisprudence deals with social norms of the society which give rise to
legal institutions. Sociological jurisprudence does not focus on study of law as well
as aim of law

2. Comparative jurisprudence
Comparative jurisprudence is comparing common rules between two or more
systems of law which are prevailed in different systems of law. Meanwhile,
comparative jurisprudence discovers common ideas and common terminology
between two system or more

3. Synthetic jurisprudence
Synthetic jurisprudence deals with the facts as it is necessary to determine the
truth from all aspects. As Dr Sethna says, Jurisprudence is a study of legal principles
including their historical, sociological and ethical analysis of legal concepts.

4. American realists
American realists are the supporters of sociological jurisprudence and they focus
on the decisions made by courts of law. They study those factors due to them
judges made their decisions

5. Scandinavian realists
Scandinavian realists do not support formal law because they say when court
makes their decision for a case they don’t keep in mind the logical grounds.
Realists are opposed to the value of legal terminology, because they prefer to
evaluate the law in terms of its behavior
6) Preclude
There are many approaches to studying jurisprudence. Jurisprudence is a part of
history, sociology, ethics and philosophy of life. It has been classified by different
jurists in various kinds. Apart from traditional (purani) approaches ,new
approaches are practical and main concern . Former were started their analysis
from facts and new starts their analysis after facts examined
Q # 03: Explain the classifications of Civil Law.
1) Preface
Civil law is a law of state which is related to private and civilian affairs and it deals with in
violations and their remedies. The study of civil law started from Roman’s age. But the
advocates of the institution must never give up the struggle to define law. Civil law is a law
of state which is related to private and civilian affairs but different from international law.
Body of civil law can be divided into two parts, general and special law. General law consists
of the general law of the land . Special law consists of certain legal rules which are so special
in their nature for a particular area
2) Literal Meaning of Civil Law
The part of the legal system which deals with personal matters, such as
marriage and property matters, rather than crime
3) Definition of Civil law
Civil law is a body of rules established by a state, which deals with private rights and
remedies, and deals disputes between individuals in different matters such as property
matters, and family matters etc.
4) Classification of Civil law
Civil law has been classified into two following categories. Details are as under:

1. General law
The general law of a country is a territorial law , which applies to all persons, acts, and
events with in the country and these are those legal rules whose judicial notice can be
taken by the courts

A. Types general law

Following are three types of general law.

a) Statute
Statute law is written law which is approved by legislatures, parliaments
or elected members of assembly.

b) Equity
It is a branch of law, when plaintiff goes to the King and complains about
the inflexibility of rules of law which prevented "justice" from prevailing.

c) Common law
Common law is written law which has been approved by Judges or judicial
precedents and it applies on the basis of customs

Examples
Examples of general law are the law of contract
Or the Pakistan Penal Code.
2. Special law
Special law is not a territorial law and it does not apply throughout the country. But it is
enforceable by the courts and court can take legal action but courts will not apply these
rules as a general rules

Explanation
The court may not or usually it does not know ,what a particular custom is
prevailed current
The parties have to prove such kind of customs if they rely upon

B. Types special law

Following are the six kinds of special law. Details are as under:

i. Local law
Local law is the law of the locality and not general law of the country
It has two types

A. Local customary law

Local customary law is such law which has been derived from old customs
prevailed in the particular locality of the state

B. Enacted law
Enacted law is such law which has been enacted by the local persons of the state

3. The conflict of laws

The conflict of laws is also known as Foreign law
For requirement of justice ,courts sometimes apply a rule of foreign law to
determine the rights and duties
This is a branch of law which resolves cases which have an element of conflicting
foreign law.

4. Conventional (Riwayeeti) law

Conventional law is the mutual agreement of the parties
It may between two states, nations, or companies such agreement is law only for
the parties not for other peoples

5. Autonomic law
Autonomic law is such law which has been legislated by a private company,
university or other entity and such legislation having internal rules and regulations
in order to control their subordinates.

6. Martial law
Martial law is such law which is administered in military courts
It is elevated in emergency when civilian agencies unable to maintain public order
or safety .it has of three kinds:
1. It is the law for the discipline and control of the Army itself ,which is known as
Military Law
2. In the times of war, the law by which Army governs on occupied territory
3. The law which in times of war or other emergency ,the army governs the state
itself

7. Mercantile customs
The Mercantile law is such law which deals with commercial activities of the
people of a country
Mercantile law is consisted on rights and duties which is imposed by the state on
traders

8. International law as administrated in Prize courts

Prize court which makes decision on the distribution of enemy ships, cargo and
vehicles captured in the times of war.
Prize courts decide whether such caption was lawful or not. As well as courts
decided whether captioned item to be distributed or returned to its owner

5) Preclude
Both General and special law are the integral part of civil law. In General law
court is bound to take judicial notice. In special law court is not bound to take
judicial notice. Judicial notice enables a judge to accept a fact without proving it
through evidence
Q # 04:Explain the term Question of law and question of
fact and mixed question of law and fact.
1) Preface
All questions which arise for determination before the court are two kinds. They are either
question of law or question of fact. It becomes very difficult to create difference between
question of law and question of fact. Question of law consisted on the theoretical rules and it
is answered by judges by using different rules of law to determine the case. And question of
fact consisted on facts and it is determined by jury in the light of facts and evidences relevant
to case. In question of fact burden of proof on plaintiff and such proof shows that violation is
occurred
2) Definition of question of Law
“Question of law is such question which is answered by judges by applying relevant legal
principles in order to determine the rights of parties
3) Definition of question of Fact
“Question of fact is such question which is determined by jury to find the facts by
evidences in order to determine the rights of parties
4) Question of Law
According to Salmond, the term questions of law are used in three different senses. Following are
the related senses:

1. In the first sense questions to be answered by law

A court is bound to give the answer of the question of law, according to rules set by law
in order to determine the rights of parties
While all other questions are questions of fact and court is not bound to give the answer
of that questions on his own

Explanation
In a legal contract, if one of the party fails to establish the terms and conditions of the
contract ,this is a question of law which will be dealt by court under the fixed principles
of that contract act
2. In the second sense interpretation of statutory provisions
There are some such questions of law where court is not quite clear that which kind of
law will be applied on this question. In this case, rules of law are confused and requires
determination

Transformation of second sense into first sense

Once judges find out the answer of the question and it becomes a precedent which
establishes a question of law. In this case, court is bound to give the answer of the
question of law accordingly

3. In the third sense questions to be answered by judges

Following is the general rule and exception about answer of the question of fact and
question of law.

a) General rule
There is a rule, that all question of law will be answered by judges
And all questions of facts will be answered by jury

b) Exceptions
There are many questions of fact which have been answered by judges while these
were pure questions of fact which needs to be answered by jury
5) Question of fact
The term question of fact also has two different senses:

1. Wider sense
In a wider sense , all questions which are not questions of law are questions of fact

According to salmond
The question of fact means
I. Question of fact is such question which has not been previously determined by
a rules of law
II. Question of fact is such question where court is not quite clear that which kind
of law will be applied on this question
III. Question of fact is such question which has been answered by the jury not by
the judge

2. Narrow sense
Questions of fact are those questions which are not subject to the judicial discretion
and judges are unable to make their decisions on their own discretion
6) Mixed question of law and fact
Some questions are partly question of law and partly question of fact such question are
called mixed question of law and fact
Explanation
If two parties make an agreement it can be question of law as well as question fact
1) It is the question of law if the agreement has been made by involving the rules of
law
2) It is the question of fact, if the agreement has been made without involving the
rules of law
7) Difference between question of law and fact
It is very difficult of create difference between question of law and question of fact; following are
the differences between two.

1. As to relation with law

Question of law is purely related with the law
Question of fact is not related with the law

2. As to proof
There is no need to prove question of law
Question of fact needs to be proved

3. As to conversion
Question of law cannot converted into question of fact
Question of fact may be converted into question of law

4. Duty of judge
In question of law, it is the duty of judge to make the decision on the basis of rule of
law
In question of fact, it is the duty of judge to make the decision on the basis of
evidence

5. As to authoritative answered
Every question which has been authoritatively answered by the court is a question
of law
Every question which has not been authoritatively answered by the court is a
question of fact
8) Preclude
To conclude, I can say that, all matters and questions which come before court of justice
either are question of law or question of fact or judge’s discretion . There is a tendency
(Rujhaan) to transform them into question of law. Even question of pure fact ,there is
already has been determined by authoritative answers
Q # 05: What is legal right? What are the kinds of rights?
1) Preface
The main object of the state is provision of rights to citizens and protection of such rights. There
can be no duty without right. Legal rights are those rights which have been given to a person by
legal system. Such rights can be repealed, modified and changed by legal system and such rights
empowers the individuals for joyful life
2) Definition of legal right
Legal rights are those rights which are common interests of people of civilized society which are
recognized and enforceable by law
3) Kinds of legal rights
Following are the kinds of legal rights. Details are as under.

1. Perfect right
perfect rights are those legally recognized rights which are enforceable by law

Example
As a valid contract is specially enforceable through the court of law

2. Imperfect right
Imperfect rights are recognized by law but are not enforceable by law due to
some restrictions

Example
Imperfect right is if a creditor releasing a debtor of his debts, either completely
or partially.

3. Positive rights
A positive right are such rights which are related to positive duty and person is
bound to do positive action

Example
If A borrows money from B. it is the right of B, that B gave back money to A

4. Negative rights
Negative rights are such rights which are related to negative duty and person is
bound not to do a certain action.

Example
A prime example of this type of negative right is the fight against government on
seizure of property without due process of law

5. Real rights
Real rights are those rights which are related to things rather than a person such
as ownership of a property, right of use of property etc

Example
I have a real right to sell or purchase the property as it is my real right against the
whole world.

6. Personal rights
Personal rights are those rights which are related to person’s right such as his
right of life, right of personal liberty, and right of religious liberty etc.

Example
I have a personal right of liberty ,freedom of speech , freedom of business etc

7. Rights in rem
The word Rem is derived from Roman term “Actio in Rem”
Right in rem is such right where an owner of the property has right to use his
property without any hesitation

8. Rights in Personam
The word Personam is derived from Roman term “Actio in Personam”
Right in personam is such right where a specific person is entitled with some
rights such as action, judgment etc

Example
Under a contract both of the parties are entitled with some rights and both are
bound by contract’s terms and conditions

9. Proprietary right
Proprietary rights are those rights which are related to person’s rights upon
touchable thing such as right upon house, his right upon money or other physical
things

Example
The right of house, right of money or other physical things

10. Inheritable rights

Inheritable rights are those rights which can be transferred to heirs such as
transfer of property, transfer of debts after the death of a person

Example
A dies leaves his property behind him his legal heirs become owner of such
property. This is an inheritable right
11. Non-heritable rights
Non heritable rights are those rights which cannot be transfer to heirs after the
death of a person and these rights finished with the death of the person

Example
Sakib has right to live, right to perform religion duties, right to speak etc. These
rights will be abolished automatically after his death and these are noninheritable
rights

12. Rights in re-propria

Right in re propria is such right where a person has a right of full ownership upon
a property and this term shows that owner has complete rights upon a property

Example
The owner of a property has full right in re propria over it

13. Rights in Re-Aliena

Rights in re aliena is such right where a person has a right of use of property of
other person

Example
My right of way across the land of another person is a right of re aliena

14. Principle and accessory rights

A principal right is such right which is not subordinate of any other right and it
stands by itself,
Accessory right is such right which is subordinate of other rights and they have a
beneficial effect on the principle rights

Example
A owes (Udhar dena) money to B. and he executes a mortgage (Girvi) deed in
favor of B. The debt is the principle right and the security in the form of mortgage
is the accessory right

15. Legal rights

Legal rights are those rights which has been recognized by court of law such as
right of vote etc

16. Equitable rights

Equitable rights are those rights which has been recognized by the court of
equity

17. Primary rights

Primary rights are those rights which have been recognized by the supreme court
that all rights which are vested in people, are legal and fair

Example
Right of reputation ,right of life etc

18. Secondary rights

Secondary rights are those rights which are imposed on offender at that time
when offender violates primary rights of other person

Example
I have a personal right to receive compensation from any individual who is any
way harms me

19. Public rights

Public right is such rights which is possessed by every member of the public. It is
between a state and the individual e.g. right to vote etc

20. Private rights

Private rights are such rights which are between individuals. It is concerned only
with the individual e.g. contract entered by two individuals.

21. Vested rights

Vested right are those rights which has been provided to a person as a property
rights which cannot be taken away without the willingness of the owner.

Example
If a valid deed of transfer is executed by A in favor of B. B acquires a vested right

22. Contingent rights

Contingent rights dependent upon the possible occurrence of a future
happening, the happening of which is not guaranteed that it may happens or
not.

Example
A executes a deed in favor of B. according to which he entitles to the possession
of certain property when he attains the age of 21 , the rights is contingent right
and it will be vested only when he attains the age of 21

23. Servient right

Servient right is such right when a person serves his right of way upon other’s
land.

24. Dominant rights

And dominant right is such right the person whose land is being used by other
person is called dominant right

Example
X as the owner of certain house has a right of way over the land of Y, his
neighbor .The house of X is the dominant heritage and Y is the dominant owner.

25. Municipal rights

Municipal rights are those rights which have been provided by the law of a
country. And individual enjoys these rights living in a country

26. International rights

International rights are those rights which have been provided by the
international law. And these rights have been internationally recognized.

27. Rights at rest

Rights at rest are those rights which are completely connected with person and
these are permanent rights

28. Rights in motion

Rights in motion are those rights which may connected or disconnected with
person time to time. Due to this doubt these are called rights in motion

29. Ordinary rights

Ordinary rights are those rights which has not been guaranteed by the
constitution

30. Fundamental rights

Fundamental rights are those rights which guaranteed by the constitution such
as right of life, liberty etc.

31. Jus and rem

Jus ad rem is a legal protection of the property from interference by anyone is
called jus ad rem. A jus ad rem is a right to right.

Example
If A sell his property to B ,B acquires a rights against A. to have the house
transferred to himself
4) Preclude
Legal rights are those rights which have been provided by state or country law. These are
enforced by the physical force of the state. These have been classified into different kinds
according to their scope by various authors. Such rights can be repealed, modified and changed
by legal system. Such rights empowers to individual for joyous life
Q # 06: Define administration of justice. How would you
distinguished between civil and criminal justice?
1) Preface
Administration of justice is the solid pillar of the Government.it cannot be violated with force
.The most essential functions of a state are two, war and administration of justice and if a state is
not capable of performing either or both of these functions. It cannot be called a state. Current
system of administration of justice is very powerful which is protecting the lives , properties, and
others rights from criminal. The object of administration of justice to give punishment to criminal
and keep them away from violation of others rights. Broad objective of administration of justice
is to compensation to wronged from wrong doer. The purpose of the law is to achieve the justice
and justice can be achieved through administration
2) Definition of administration of justice
The administration of justice is meant the maintenance of rights of the political community by
means of physical force of the state”
3) Necessity of administration of justice
In old age, might was the sole right. Every man was his own judge. A person wronged would seek
revenge by his own hands. To stop this negativity ,it felt that some strong tribunal should hold
administration and now a state is performing administration and without a common power to
keep them all in awe (Drr).it was not possible to live in a society”
4) Reasons for need of administration of justice
Following are the reason for the necessity of the administration of justice

1. Man is fighting animal

Man is by nature a fighting animal who always uses the force in order to seek justice and
from stone age, men are fighting with one another upon different social matters

2. Man is a social animal

The social nature of the man demands that he must live in a society
While living together, man has experienced the conflict of interests
Such kind of conflictions, created the necessity for providing the administration of
justice

3. To stop criminal activities

Without physical force it was not possible to stop criminal activities and keep criminals
away from gaining unfair advantages for better development of society

4. Check on justice
Without physical force, administration of justice was not possible and without justice
the life of people is poor, and short
5) Origin of administration of justice
The origin (Ibtada) and growth of administration of justice is same as the origin and
growth of man. The social nature of the man demands that he must live in a society.
While living together, man has experienced the conflict of interests. Such kind of
conflictions, created the necessity for providing the administration of justice. The origin
and growth of administration of justice is divided into three stages

1. First stage
At the first stage, might was the sole right at that time, every man was a judge in his
own .Person wronged seeks revenge by his own hands each and every man spent his life
on his own style

2. Second stage
The second stage started with the development of political states and those states
which were not strong enough to control crimes and impose punishments to criminals .
These states developed the concept “a tooth for a tooth” and “an eye for an eye” and “a
life for a life” but furthermore, state provided that a life shall not be taken for a tooth or
for an eye

3. Third stage
With the growth of the power of the state. State began to act as a judge to analyses the
liability and imposition of penalty due to which punishments were given against crime
the civil law and administration of civil justice helped the wronged against violation of
his rights in the shape of compensation. At present administration of justice, no one can
release himself from judicial decisions and punishments providing according to the law
6) Classification of administration of justice
Administration of justice in divided into two parts:
1) Administration of civil justice
2) Administration of criminal justice

1. Administration of civil justice

Administration of civil justice is dealt with in civil proceedings. The object of civil justice
is to enforce rights

Kinds of rights
There are two kinds of rights connected with civil justice.

I. Primary rights
The Fundamental rights are defined as basic human freedoms
Every citizen has the right to enjoy his life with all rights
These rights universally apply to all citizens, irrespective of race, place of birth, religion,
caste or gender.

II. Secondary rights

Secondary rights are those rights which come into existence after the violation of
primary rights.
Secondary rights are:
The right to the compensation of damages by the wrong doer
Imposition of penalty on the wrong doer by penal action

Explanation
If A enters into a contract, performing a contract is his primary right
If that contract breaches, he is compensated against the loss of contract which is his
secondary right

2. Administration of criminal justice

Administration of criminal justice is dealt with in the criminal proceedings
The object of the criminal justice is to punish the wrong doer
From very ancient time, a number of theories have been given related to giving of
punishments which have been divided into two classes
According to first class, the object of the criminal justice is to protection of the state and
society
According to second class, the purpose of punishment is retribution (Badla)

I. Aims of criminal justice

Following are the aims of criminal justice.
1) Enforcement of criminal law
2) Protecting society through maintaining law and order
3) Helping victims
4) Punishment to criminal
7) Distinction between civil and criminal justice
The difference between criminal justice and civil justice cannot be measured in terms of physical
concerns of the act. Following are the differences between civil and criminal justice.

1. As to administration
Civil justice is administered according to one set of form
Criminal justice is administered according to another set of form

2. Place of administration
Civil justice is administered in one set of courts i.e. civil courts
Criminal justice is administered in different set of courts i.e. criminal courts

3. As to object
Object of civil justice is to enforce rights
Object of criminal justice is to punish the criminals

4. Dealing
Civil justice deals with private wrongs
Criminal justice deals with public wrongs i.e. crimes against society

5. Proceedings
Civil justice deals with in civil proceedings
Criminal justice deals with in criminal proceedings

6. As to parties
In civil proceedings, private individual are parties e.g. plaintiff vs defendant
In criminal proceedings, state represent itself as a part i.e. state vs accused

7. As to Crime
Civil wrongs are less harmful
Criminal wrongs are more harmful
8. As to outcome
Civil proceedings result in judgment of damages etc
Criminal proceedings result in one or number of punishments

9. As to institution of proceedings
In a civil wrong, injured person can prevent the wrong doer from civil proceedings
In criminal wrong , injured person cannot prevent the wrong doer IS being taken the
punish
8) Preclude Remarks
The administration of justice is needed always in all societies. Current system of
administration of justice is very powerful which is protecting the lives, properties, and
others rights from criminal. The object of administration of justice to give punishment to
criminal and keep them away from violation of others rights. Broad objective of
administration of justice is to compensation to wronged from wrong doer . The purpose
of the law is to achieve the justice and justice can be achieved through administration
Q # 07: Discuss different theories of punishments.
1) Preface
The most common functions of a state are two, war and administration of justice and
administration of justice classified into two parts, civil justice and criminal justice. The
purpose of the criminal justice is to punish the wrong doer who is punished by the state.
Purpose of punishment is to make men better or protection of the society. With the passage
of time, various theories have been given by different jurists
2) Definition of punishment
Punishment is a method of protecting the society from offender for reducing the occurrence
of criminal acts
3) Definition of crime
Crime is an act which violates the public rights which have been legally recognized by the
state and are punishable under the law
4) Definition of criminal justice
Criminal justice is the body of law which deals with the offences and the imposition of
punishments for offender against their violations
5) Theories of punishment
There are certain theories behind the concept of punishment

1. Deterrent (Dra kr rokna) theory

According to this theory of punishment, purpose of punishment is to deter the offender
from committing crimes again as well as keep other people away from committing the
crimes.The aim of punishment is not revenge but terror

Criticism
There is a lot of criticism on the deterrent theory of punishment in modern time
A) To harsh punishment creates the sympathy in the hearts of people for
offender
B) To harsh punishment makes the offender more cruel instead of accept the
fear of law
C) Harsh punishments lose its fear once the criminal is punished

2. Preventive theory
According to this theory of punishment, purpose of this theory is prevention of the
people from crimes which is only possible by disabling the offender by imposition of
different kinds of punishment such as imprisonment, death, deportee, disables the
physical power of offender to commit the offence again. According to this theory all
criminals should be imprisoned and kept far away from the normal society without any
connection to it. By using this method, the society will be protected from the criminals.

Example
An example of the preventive punishment is the cancellation of the driving license
of a driver

Criticism
There is a lot of criticism on the preventive theory of punishment in modern time
A) When offender puts in jail, it breeds (Nasal) more crimes
B) For a long time keeping him in a jail with habitual offenders, it makes him
more cruel

3. Reformative theory
According to this theory of punishment, the purpose of punishment is reformation
of the offender, even if offender commits a crime. He must be educated and taught
some industrial arts during the period of imprisonment so that he may be able to
start his life after his release from jail

Criticism
There is a lot of criticism on the deterrent theory of punishment in modern time
If a criminal to be sent in jail for transformation into a good citizens, in this case, the
will become a comfortable place for criminal. This kind of behavior with the
criminals will be helping the criminal to commit more crimes in future because they
know that in prison they will not be punished

4. Retributive (Badla) theory

According to this theory of punishment, In ancient age, the only purpose of this
punishment was only on the revenge. The person wronged was allowed to have his
revenge against the wrong doer and the wrong doer will give the same punishment
as had been suffered by the victim. The principle of this theory was “an eye for an
eye” and “ a life for a life” and “a teeth for a teeth” was recognized and followed

Criticism
There is a lot of criticism on the deterrent theory of punishment in modern time
Critics points out that the retributive punishment is not a judicial remedy for the
crimes committed by the offender but retributive punishment in itself abolishes the
value of judicial proceedings and people start believe on revenge which leaves a bad
influence on the minds of people

5. Compensatory theory
According to this theory of punishment, the purpose of punishment is to
compensate the victim which creates a financial pressure upon an offender who
violates the rights of the people of the society. If a victim may lose his property by
the offender in this case, according to this theory the offender will be liable to
return the property to his real owner

Criticism
There is a lot of criticism on compensatory theory of punishment.
A) If offence is performed by a poor offender it is not possible that
compensation may be taken
B) If an offender is a rich person so the payment for compensation may be not
punishment for him

6. Expiatory (compensation) theory

This theory is similar to the compensatory theory, according to this theory;
compensation is paid to the victim by the wrong doer. The idea behind expiation
theory is that the current justice system forgets about the victim or about their
family, and just focuses on punishing the criminal.

7. Utilitarian theory
The utilitarian theory does not support any particular theory. But it is purely based
on Penal measures and followers of this theory believe that punishment is a method
for reducing crimes, no matter which kind of punishment is give. Followers of this
theory say that the aim of punishment is to achieve good concerns for this each and
every kind of punishment should be given
6) Types of crimes in Pakistan
Following are the types of crime in Pakistan which are punishable under the Pakistan penal code
1) Murder
2) Rape
3) Robbery
4) Theft
5) Undue influence
6) Corruption
7) Cyber crime
8) Human trafficking
9) Attempt to suicide
7) Objectives of Punishment
Following are the objectives of the punishment
1) The major objective of the punishment is the protection of the life from offender
2) Second objective of the punishment is the protection of the property of the people
3) Another objective of the punishment is the protection of the state and country
4) Theory of punishment aim is the maintenance of the peace and equality
5) Protection of the culture and morality
6) Most important objective is protection of rights and liberties of the people
7) The biggest aim of punishment is to disgrace the crimes and criminal activities
8) To prevent the other members of the community from repeating of crimes
8) Preclude
The perfect system of criminal justice cannot be based upon any one theory of punishment
because each and every theory has its own merits and all efforts are being put in order to
gain good results against criminals. The deterrent aspect of punishment must not be ignored
as well as reformative theory must be given its due place .The purpose of the criminal
justice is prevent society from repetition of crimes by offender and there are a lot of
methods to keep offender away from committing crimes again

Q # 08: Define custom? Explain various kinds of custom

and
essentials of valid custom?
1) Preface
The term “Custom” derived from Latin word “Consuetudo” which means “Habit or Usage”. A
study of ancient society shows that law making was not the business of rulers of that time.
Law of the country had been found from the customs of the people which developed by
people with need of the time. Custom is the legal source of law and customary law derived
from general practices of the state followed by the people ,they consider those customs as
legal obligation
2) Meaning of Custom
Traditional Legal practices or usual way of doing something by a group of a social community
is called Custom
3) Kinds of customs
Custom are of two kinds:

1. Legal custom
A legal custom is such custom whose legal authority is absolute, and has been legally
accepted by the state. Legal custom has two kinds.

I. General custom
General customs are those customs which have been accepted by the state.

II. Local custom

Local customs are those customs which have been accepted by a particular locality but
the authority of the local custom is higher than general custom

2. Conventional custom
A conventional custom is such custom whose authority is conditional, and it may be
accepted or not such as agreement between the parties

Reasons of usage of customs

Following are some reasons by which customs are being used as law
1) The usage must be reasonable
2) The Usage doesn’t go against general law of the land
3) The Usage doesn’t go against the terms of the contract

Example
You for your wedding ,want to wear the dress in red color as traditional dress of the
locality so it is to be called as conventional custom
4) Essentials of a valid customs
Following are the essential element of the a valid custom

1. Immemorial (Qadeem)
A custom is a valid custom which is to be proved immemorial. A custom may be legal
and binding ,and must have been used before extreme long time even beyond human
memory. So if anyone can show the beginning time of the custom ,it is no good custom

2. Reasonable
Custom must be reasonable. A valid custom must be obey the standards of justice and
should be based on legal rule. If a custom is cause of inconvenience such a custom will
not be valid

3. Continuous
A custom is valid if it has been in continuous practice and it has been enjoyed without
any kind of interruption. Long break of practice of a custom raise doubts about the
validity of the custom

4. Peaceable enjoyment
The custom must have been enjoyed peaceably without any clash with court of law or
otherwise

5. Certainty (Yaqeeni)
The custom must be certain and definite, and must not be unclear and confusing.
If it has some confusing factors in it ,it is not a valid custom

6. Compulsory observance
Custom is valid that if it has been continuously observed without any gap from times
immemorial. And it must has been regarded as an obligatory rule of conduct

7. Universal
The custom must be universal or practically useable by people of the universal
community. In the absence of common opinion, custom becomes ineffective or even get
destroyed

8. Not opposed to public policy

A valid custom must not be opposed to public policy or the principles of morality. If a
custom is against the law. it is inapplicable

9. Not opposed to statute law

A custom which is opposed to statute law cannot be a valid custom. Courts have
declared many customs as invalid as they were opposed to statute law

10. Consistent (Mutabqat) with each other

A valid custom must be consistent with each other. One custom cannot disagree with
other established custom.
5) Theories regarding transformation of custom into law
Following are the two theories on transformation of custom into law
Arbitrary

1. Historical theory
Custom is derived from the common awareness of the people and it grows as a result of
intelligence of people. According to historical theory, the growth of law does not
depend upon the will of any individual and it does not depend upon any accident . The
growth of most of the customs is not the result of any conscious thought but of cautious
practice. All customs are not the result of the consciousness of the people. In many
cases, customs have been arisen for the convenience of the ruling class

2. Analytical theory
Customs are source of law and not law itself as well as customs are not valid until their
validity recognized by the courts.Customs are not laws but they are largely adopted into
law by state recognition
6) Reasons for which custom is given the force of law
Following are the reasons by which customs are given the force of law

1. Scale of measurement
The reason for which custom is given force of law because custom is scale of
measurement of the man’s insight and ability of judgment of matters

2. Expectation of continuance
The reason by which custom is given force of law is the expectation of its continuation in
the future and this expectation should be fulfilled and not frustrated

3. Observance by a large number of people

The reason by which custom is given force of law that is its observation by a large
number of people in society and, That’s why custom is given force of law
4. Interests of society
The reason by which a custom is given force of law because it rests upon the interest of
the society. Such kind of interest of society makes the custom more strong and people
does not go against the custom

5. Useful for legislation

Custom is useful in legislation and helps in codification of law. Custom provides the
material which helps in law making. That’s why custom is given force of law
7) Preclude
Custom is an important source of law and a lot of laws have been enacted in the light of
positive customs. It exists in the foundation of all legal systems. Customs come into
existence with the existence of society. However with the passage of time, the
importance of custom in law making has been accepted by law makers

Q # 09: What is legislation? Distinguished between

supreme and
subordinate legislation.
1) Preface
The term “Legislation” is derived from Latin word “Legis” which means “Law” and “latum”
which means “to make”. Legislation means making of law. In wider sense, the term legislation
includes all methods of law making. Legislation is a source of law which is called enacted law,
written law or statute law. Legislation is a law which has been enacted by a legislature or by a
state even on local authorities. Legislation is an act or process of making of law , and law
consists on legal principle of the state or locality
2) Definition of legislation
The process of making of law or enactment of law by the legislative authority of the state is
called legislation
A law or group of laws made by government and process of making of laws is called legislation
3) Legislation as source of law
Legislation as a source of law is being discussed under the following approaches

1. Analytical approach
According to supporters of this school only the legislation is the source of law. The
majority of advocates of this school say that customs are not source of law and courts
cannot make law. But they only consider legislation a source of law

2. Historical approach
According to supporters of this school the legislation is the smallest sources of law. The
main function of legislation is only to give better form to law. They say that legislation
has not played creative role. They do not consider legislation as a source of law

Criticism
Both Analytical and Historical Schools are defining the legislation as source of law.
The mistake made by the Analytical school, they consider only the legislation as source
of law and does not give importance to customs and courts
The mistake made by the Historical school, they does not regard legislation as a source

of law

Functions of legislation
Legislation has two functions according to its nature.
1) To organize and create the new laws from customs. In modern times there is no
doubt in its creative nature
2) Analysis of the positivity or negativity of the customs in order to making the legal
principle
4) Kinds of legislation
Following are the two kinds of legislation

1. Supreme legislation
2. Subordinate legislation
1. Supreme legislation
Supreme legislation is that which proceeds from the supreme legislative powers in the
State. Such legislations cannot be repealed, cancelled or controlled by any other
legislative authority . It is impossible to impose limitations on the supreme authority of
the state and such superior person does not gets disobedience by no one

Example
In England, Parliament is the supreme legislative authority. An act of parliament cannot
be repealed or cancelled for unreasonableness or upon any other reason
2. Subordinate legislation
Subordinate legislation is that which proceeds from any authority other than the
supreme legislative powers of the state. Such kind of legislations can be repealed or
cancelled by superior legislative powers of the state. It dependents for its existence and
validity on some superior authority

Example
Legislation made by the Municipal corporation is the subordinate legislation which
easily can be repealed by superiors legislative powers due to some reason

Types of sub ordinate legislation

Following are the five kinds of subordinate legislation

1) Colonial legislation
Colonial legislation is such legislation which is made by the legislatures of colonies or
other authorities. The parliament can repeal ,change or cancel any colonial legislation

2) Executive legislation
The main functions of the executive legislative authority is to enforce the laws which
have been enacted by the legislative authorities of the state for administrative functions
of the state
Executive set some rules and regulations which being checked and controlled by below
authorities.
1) Parliament supervise the subordinate legislative authorities
2) Judicial control
3) Public opinion
4) Experts/Legislatures opinion

3) Judicial legislation
Judicial legislation is such legislation which is made by the judicial courts of the state.
The superior courts are given limited powers to make general rules for the regulation of
their own judicial procedures.

4) Municipal legislation
Municipal legislation is such legislation which is made by municipal authorities.
Sometimes municipal authorities are given limited powers to make the general rules for
administration of their area
Municipal authorities can punish the offender according to rules made by them

5) Autonomous legislation
Autonomous legislation is such legislation which is made by private personalities such as
Universities, railway companies or society etc in order to control the actions of their
member and these rules are enforceable by law
5) Sources of legislation
Following are the sources of law as details are as under:

1. Society
Society is the basic source of legislation. Without it any kind of legislation and making of
rules are not possible.
People are living together in a social community as all customs and traditions give rise
from a society, all legal or illegal activities are performed in society on basis of which
legislation can be made. There is no concept of legislation without a society

2. Customs and traditions

Custom and tradition are the basic sources of legislation while customs help the courts
and jurists during enactment of legal rules for betterment of the society
In modern times , courts are enacting laws keeping in view practicing customs by the
peoples

3. Judicial decisions
Judicial decision is called precedent. Precedent helps courts and judges in enactment of
new laws which is called legislation.
6) Preclude
Delegated legislation is necessary for many reasons; as faster legislation is needed to be
created while it was not possible with insufficient parliamentary time and relevant
knowledge. Legislation is consists upon the declaration of legal rules by a competent
authority. There are two ways for an authentic legislation one is by Supreme power of
the state and other is by sub ordinate authority of the state. Supreme legislation
dominates on all other legislations and it can’t be repeal or cancelled by any other
authority. Sub ordinate legislation depends upon supreme legislative powers for its
existence
# 10: Define precedent. What is meant by Ratio decidendi
and
obiter dicta?
1) Preface
Precedent is a Judicial decision which has been given either by Supreme or sub ordinate Court.
Precedent is an important source of law. Judicial decision contains a principle of law in itself and
that principal is termed as Ratio Decideni . As well as other things required by the court or
required particulars related to case are termed as obiter dictum Precedents helps judges or
courts in order to resolve subsequent similar cases
2) Definition of precedent
In a legal system, precedent is a judicial decision which establishes a legal rule for subsequent
similar cases
3) Literal and legal meaning of Ratio Decidendi
Literally Ratio decidendi is a Latin phrase which means “the reason for deciding" . Legally Ratio
decidendi is a reason on behalf of, judge decides the case. It describes the legal principle of the
case

According to Pro Repert cross

“A ratio decidendi is a rule of law expressly treated by the judges as a necessary
step in reaching his conclusion”

According to Salmond
“A precedent is a judicial decision which contains in itself a principle which has its
authoritative element is termed as ratio decidendi”

1. Effect of Ratio decidendi

Basically, under the doctrine of Ratio decidendi, the decision of a higher court bounds
the lower court within the same similar cases. Ratio decidendi has force of law and
binds the parties to it. It legally binds the courts to make their judicial decision keeping
in view all factors which have same in nature of other cases

2. Must relevant to case

The process of determining the ratio decidendi is an analysis of what the court actually
decided? Based on the legal points about which the parties’ in the case actually fought.
As well as all other statements of the courts should be relevant to the case under
hearing

According to Salmond stated

“The only judicial principles which are authoritative and those are relevant to
their subject matter and limited in their scope”
A. Rules determining ratio decidendi
In Section 29 of Salmond on jurisprudence, rules determining the ratio decidendi have
been indicated .Details are as under:

1. Case decides generally

What the case decides generally and it decides a general principle which becomes a
rule for whole world because it has a valid authority

2. As between the parties

What the case decides between the parties, the law decides that once case has
been heard and appeals have been taken, all parties and their successors are bound
by it that they never will fight in future with one another

3. As against persons not parties to suit

What the case decides as against persons not parties to suit, it decides a general
rule of law which has authority against the persons dispute (Jhagra)

B. Methods of determining ratio decidendi

The different jurists have presented methods of determining ratio decidendi, which
are as under:

1. Reversal test
The reversal test of professor Wambaugh suggested that ratio decidendni can be
discovered by reversing the preposition of law put forwarded by the court and
inquiring whether the decision would be same after reversing the facts. If it is the
same then proposition of law is no part of the ratio. The ratio is a general rule
without which the case would have been decided otherwise.

Criticism
Lord Simonds has pointed out defects in the suggestion. In case if judge has given
two alternative grounds for a decision. The test of Wambaugh would compel us to
deny the importance of ratio decidendni

2. Good hart’s theory

According to Prof Good hart ratio decidendi is not the reason for the decision
Ratio decidendi is basically a conclusion reached by the judges on the basis of
material facts
According to Good hart theory ,here is the judge who is deciding what are the
material facts which can be discovered by a study of the judgment

Criticism
It has two points.
1) It is the judge’s discretion what they choose to regard as the material facts
of the earlier cases
2) Two person may agree as to collection of individual facts different from
their group as unit
4) Literal and legal meaning of Obiter dictum
Literally the word obiter dicta is a Latin word which means “things said by the way.” Legally all
that is said by the court by the way which are irrelevant or unnecessary for particular case is
called obiter dictum

According to Good hart

“A conclusion based on a fact the existence of which has not been
determined by the court”

1. Force of persuasive (Tehreek)

The obiter dicta have persuasive force in itself. In the course of his judgment a
judge may select various observations relevant to issue before him. They can take
advantage from such observations but they are not bound to follow them

2. Advantages of orbiter dictum

Following are the advantages of orbiter dictum
1) Orbiter help in the growth of law
2) Sometimes it helps in reformation of law
3) The judges are excepted to know the law and their observations are bound to carry
weight with the government
4) The defect in the legal system can be pointed out by the obiter dictum
5) They provide the solutions to problems which have not been decided by the courts
up till now
5) Kinds of dicta
Following are the kinds of Dicta which varying degree of weight

1. Causal expression of opinion

Sometimes obiter dictum raised casual expression of opinion which already has
not been presented by anyone in case and not come in the mind of judges. Such
dicta (Dawa) may be respected by judges in a way to bring it under consideration

2. Deliberate (intentional) expression of opinion

Giving full consideration upon a point before the court is deliberation expression
of opinion
It depends on judges to give decision conflicting to such dicta but much attach
great weight to the dicta
6) Preclude
Inferior courts are bound to apply the legal principles set down by superior courts in earlier
cases. The decisions given by the judge who contains ratio decidendi and obiter dictum. Ratio
decidendi is the reasoning for the decision. And obiter dictum which is nothing but
observations of the judges upon a particular point which is not strictly relevant to the point in
issue but which is for the growth of law

Q # 11: Define legal right. Discuss the essentials of legal

rights.
1) Preface
The main object of the state is provision of rights to citizens and protection of such rights.
There can be no duty without right. Legal rights are those rights which have been given to a
person by legal system. Such rights can be repealed, modified and changed by legal system and
such rights empowers the individuals for joyful life
2) Definition of legal right
Legal rights are those rights which are common interests of people of civilized society which are
recognized and enforceable by law
3) Essentials of legal rights
Following are the five essential elements of legal rights. Details are as under:

1. Person of inherence
Person of inherence is an essential of legal right. Where a person who has been given a
permanent legal right which is enforceable against other and he can exercise his right
and can get benefits from his legal right and he is only the owner of this right

2. Person of incidence
Person of incidence is an essential element of legal right. A person against whom a legal
right has been enforced by other and upon whom a duty falls is called person of
incidence.

3. Content of the right

Another essential of legal rights is its content. According to this element if a person who
has been entitled to perform a certain duty, he is legally bound to perform this duty and
if a person who has been entitled not to perform a certain duty, he is legally bound not
to perform this duty. Because this permission or omission regarding performance of an
act is his legal right.

4. Subject matter of the right

This is an important essential of the legal right. There should be a subject matter upon
which a person will perform an act or will not perform an act upon the thing

5. Title of the right

Another essential element of the legal right is title of the right. Every legal right has a
title. There are certain reasons by which a person becomes the owner of a thing. A
person can become owner by purchasing the thing, by receiving a gift or by succession
after the death of previous owner

Illustration
A man buys a house from another. The buyer will be the person of inherence i.e.
and seller of the house is person of incidence.
The object of the right will be the house
The content of the right is restriction on further usage of house
The title to the right is sale of the house
4) Objectives of the right
Following are the objectives of the rights against their citizen. Details are as under:
1) Provision of better services to people for their better living
2) Provision of freedoms of thought and speech without any fear
3) Provision of protection of the family right from offender
4) Provision of rights of women and children in the society
5) Provision of the trainings into military and armies to the children and adults
6) Provision of freedom of business and freedom of religious duties
5) Classification of rights
Rights have been classified into following kinds. Details are as under

1. Personal rights
This is very important legal rights as right of life, right of personal liberty and
reputation. All above mentioned rights are immaterial

Example
I have a right not to be killed and object of this right is my life

2. Domestic rights
There are some rights in respect of domestic relation
Every person has a right in the society ,affection and security of his wife and
children
Here the object of right is affection and security of the person

3. Right of reputation
This is also an important legal right which is right of reputation
Reputation means a good opinion of other persons about a person
A person has a right not to be insulted such right has given legal protection

4. Rights over material things

These are most important legal rights upon material things and upon their
number and variety. Examples as one’s right on his own car or cars etc

5. Rights over immaterial property

These are the rights over immaterial property
Examples of such rights are the patent rights (A person is given authority by a
state for making and sell of something for a limited time) copy rights or trade
mark etc as an object of copy right is freedom of expression on his own things

6. Rights in respect of other rights

Particular property which has been given legal protection from interference by
anyone is called jus ad rem. A jus ad rem is a right to right.

Example
By a promise of selling a house. The purchaser holds a right to acquire the
property. Purchaser finally acquires the property on being actually sold

7. Rights of service
There are rights to services. These rights are created by the contract between
the two persons such as master and servant, physician and patient and advocate
and client etc. Here the object of this right is use of skills, knowledge, strength
and time etc.

Example
If physician is hired, the hirer gets a right to the use and benefit of his skills and
knowledge
6) Preclude
Legal rights are those rights which have been provided by state or country law. These are
enforced by the physical force of the state. These have been classified into different kinds
according to their scope by various authors. Such rights can be repealed, modified and changed
by legal system. Such rights empowers to individual for joyous life
Q # 12: Discuss various principles of interpretation of
enacted law.
1) Preface
One of the most important function of the court is the interpretation of enacted law of the
statute and such interpretation is the process by which courts interpret the law. Interpretation
takes place whenever the meaning of a legal term is required. Lawyers and judges search for
meaning by using different rule of interpretation. There are certain rules of interpretation of
law which are used by courts during the interpretation of laws. This process is helping lawyers
as well as judges in order to understand the law
2) Definition of interpretation
The process of finding the meaning of a written Law is called interpretation
3) Rules of interpretation of law
Following are the general rules for interpret the laws. Details are as under.

1. Grammatical interpretation
In Grammatical interpretation of law, court only interprets the meaning of the words but
court does not go beyond legal meaning of the law.

Defects in grammatical interpretation

Following are the three logical defects in grammatical interpretation
1) The language of the law can be vague
2) The language can be inconsistent which can destroy the meaning
3) The law itself can be incomplete

2. Golden rule
In golden rule, court goes beyond legal meaning of the words when the words of the statute
are not clear in order to avoid any kind of discrepancy (Tzaad) in result.

3. Casus omissus rule

According to this rule, it not the duty of court to interpret the laws while it is the function of a
legislative bodies. Law’s correction is the duty of legislature and it is not the duty of courts

4. Mischief rule
In mischief rule, court tries to find out the “mischiefs and defects” and “real intention” of the
law giver in order to implement a remedy for any breach.

Heydon case
The origin of the mischief rule is Haydon’s case in which four things were observed
1) What was the common law before the making of the ACT
2) What was the mischief and defect which the common law did not provide
3) What remedy the parliament has imposed and appointed to cure the disease
4) The true reason of the remedy and judges destroy the mischief and advance
the remedy

5. Rule of ejusdem generis

According to this rule, when a court refers to automobiles, trucks, tractors, motorcycles, and
other vehicles and uses the term ejusdem generis in support of other same thing, and such
vehicles would not include airplanes, because the list included only land-based transportation

6. Logical interpretation
In logical interpretation, courts are allowed to depart from the letters of law and try to find
out the true intention of the legislatures. Logical interpretation is comparison of the statute
with other statute and study of circumstances in which statute was passed”

7. Sociological interpretation
In sociological interpretation, court refers the history of social movements and circumstances
which were exist at the time of legislation in order to find the intention of law giver

8. Strict interpretation
In strict interpretation, Court makes interpretation of unclear terms of law when a language is
unable to provide exact and clear meaning of the law
9. Equitable interpretation
In equitable interpretation, court makes interpretation of enacted law by narrowing or making
larger the letter of the law. Such kind of interpretation is equitable interpretation

10. Restrictive interpretation

In restrictive interpretation, court applies restrictive interpretation when court wants to get
exact meaning of a law .This is a restrictive interpretation

11. Extensive interpretation

in extensive interpretation, court applies extensive interpretation when court aims to stretch
the word from narrower to the wider sense .This is extensive interpretation

12. Historical interpretation

In historical interpretation, court uses historical interpretation when language of statute does
not provide the real intention of the law giver and court unable to understand the language
used in statute

13. Equity of a statute

Term equity of statute which developed hundreds of years ago when plaintiffs would go to the
King and complain of inflexible rules of common law which prevented "justice" from
prevailing. And the reason is that law didn’t make rules for all cases in express terms

14. Whole construction

In whole construction, court interprets the whole law and covers all clauses of the law instead
of partial interpretation in order to get the real intention of the law giver

15. Plain construction

In plain construction, court does not interpret the laws if the words of law are clear and
understandable, it will be enforced same as it is, if the result may appear harsh, unfair or
inconvenient

16. In accordance with policy of statute

The interpretation of an enacted law should be in accordance with the policy and object of the
enacted law

17. Re-trospective (back dated) effect

The general rule of interpretation is that no retrospective (Guzray huay zamanay ka ) effect
will be implemented on a law, keeping in view the past incidents
Example if a person made a criminal act that was not criminal act at the time it was done
18. Rejection of technicalities
According to this rule, court rejects the technicalities during the interpretation of enacted law
because court does not believe on technicalities but facts

19. Rules of presumptions (Qyaas ariyan)

Following are some rules, which needs to be keep in mind during interpretation of law.

I. Legislature does not make mistake

It is always to be presumed that the legislature does not make mistake
If he does make the mistake it needs to be corrected

II. Legislature not intended inconvenience

It is always to be presumed that legislature does not intend inconvenience
Legislature always wanted to produce justice from his enactment

III. Legislature does not alter the existing law

It is always to be presumed that legislature does not intend any alteration in the
existing law. Statute should not be interpreted if it hurts the general law or
fundamental rules of law

IV. Legislature does not interfere with vested rights

It is always to be presumed that legislature not interfere with persons rights
without compensation

V. Statute not violate international law

Another presumption is that statutes do not violate the principle of international
law.
4) Preclude
It is the duty of legislature to enact and make law and it the duty of courts to interpret it and
apply it according to certain rules of interpretation. Judges are legally bound to interpret the
enacted in law in according to legal principles. Courts and judges can never interpret the laws
on their own discretion. Such kind of interpretation abolishes a lot of mistakes from existing
rule of law for the better administration of justice
Q # 13: Explain possession. Explain kinds of possession
and
modes of acquisition of possession.
1) Preface
Possession is one of the most important concepts in legal history. The ownership, control or
occupancy upon a land or personal property by a person is called possession. A person may
have right of possession on some property while possession does not show ownership. The
right of possession means that someone holds something in hand and this person may be the
temporary holder or the long-term owner of a thing
2) Meaning of possession
“Possession means physical control over things”
3) Definition of possession
A person who is possessor of anything, he has complete control over the thing and has the
right of exclusion of others is called possession
4) Modes of acquisition of possession
Following are the three modes of acquisition of possession

1. Taking
Possession can be acquired by taking the thing physically. It is possible without the
willingness of the owner

a. Rightful taking of possession

A shopkeeper is entitled to get some money from a customer and the shopkeeper
gives possession of the thing to the customer. This is an example of rightful taking
of possession

b. Wrongful taking of possession

If a thief steal something from the custody of an individual, his acquisition of
possession is wrongful taking of possession

c. Original taking of possession

If a person captured a wild animal which does not belong to anybody, such kind of
possession is called original taking of possession

2. Delivery
Another way of acquisition of possession is by delivery. In this case, such kind of
possession is possible with the willingness or co-operation of previous possessor

A. Actual delivery
Actual delivery refers to delivering the physical control of a thing to other person is
called actual delivery in this case, deliverer can orcan not recollect possession
because it all depends on the nature of transaction
Example
A lend his book to B. A recollect the possession of the book but it A sells his
book to B, so A cannot collect his possession

B. Constructive delivery
Constructive delivery refers to an act of transfer of possession by operation of law
while actual transfer is impossible in this kind of delivery

Forms of constructive delivery

a. Traditio brevi manu

In this case, possession is surrendered to one who has already in possession
of it e.g. I lend you a book and later on i present it to you

b. Attorment
Attornment in English is real property law, is the acknowledgment of a new
lord by the tenant on the departure from the land.

Example
A sells land to B
C is in possession as a tenant
C agrees with the B , to hold it for the future on his account instead of on
account of A
Here B secures mediate possession by constructive delivery by way of
attornment

3. Operation of law
The law moves goods from the control of one person to the control of another e.g. if a
person dies, the possession of his property will be transferred to his successors and legal
representatives

1. Res nullius (A thing which has no owner)

According to this principle, the first finder of such thing becomes the owner res
nullius includes wild animals or wild property

2. Exceptions
This rule has following exceptions
1) If a person finds the things as the servant of another person
2) It the possession of the thing was got through trespass or other
wrongful act.
5) Kinds of possession
Following are the different kinds of possession

1. Immediate and mediate possession

a. Immediate possession
Immediate possession is also called direct possession if the relation between the
possessor and the thing possessed is direct so it a a case of immediate possession

Example
If A goes to bazaar and buys a thing personally, the possession of A is
immediate possession

b. Mediate possession
Mediate possession is also called indirect possession. If the relation between the
possessor and the thing , through a third person it is a case of mediate possession

Example
If A send his servant to bazaar to buy something and servant does make
purchase. The possession of A is mediate possession

kinds of Mediate possession

First
Owner has right of possession on the thing which is under possession of his
servant on his behalf and his servant has not right of possession on that
thing e.g. buying a book on behalf of owner

Second
In this case, possession is with a person who holds the thing on his behalf or
on behalf of other person and who is bound to handover the thing
whenever other person desire e.g. some borrow a book from someone

Third
In this case, possession is with one person but he is bound to return the
thing after a certain period

Example
If A give some money to B and pledge certain thing against money
A has immediate possession on things but bound to return things to B on
payment of the debt

2. Corporeal and incorporeal possession

a. Corporeal possession
Corporeal possession is the possession of a material or physical thing e.g.
possession of car, books etc.

b. Incorporeal possession
Incorporeal possession is the possession of immaterial thing e.g. possession of
copyright etc.

3. Representative possession
Representative possession is that which the owner has possession of a thing
through his servant
In simple words , owner can exercise control over the things in the hands of his
servant

4. Concurrent possession
In the case of concurrent possession , the possession of a thing may be in the
hands of two or more persons at the same time but claims are destructive for each
other

Example
I may possess a piece of land and another person may have the right of way
on the same land

5. Derivative possession
Derivation possession is basically a lawful possession , and it comes into existence
by making a contract between the parties and such possession is without
ownership of the property
e.g. creditor (laindaar) has derivative possession upon things pledged to him

6. Constructive possession
Constructive possession is a possession in law not in fact. where an individual has a
legal control over a property instead of having physical control on the property

Example
Giving of key of building is the giving constructive possession of the
building

7. Adverse possession (possession against one’s interest)

Under certain circumstances, an occupant can come into your land, occupy it, and
gain legal ownership of it. The legal term for this is "adverse possession." And it will
remove the title of true owner

Conditions for adverse possession

Following are the conditions for adverse possession
1) Possession must be exercised without violence
2) Possession must be exercised openly i.e. without stealth
3) The possession must be without legal permission

8. Duplicate possession
There is no possibility for more than two persons to have the possession of the
same thing at the same time. The possession of a thing by one person is compatible
but it is possible when claims are not against one another .it can be clarified that
by accruing a contract between two parties ,duplicate possession is exercised

Example
The possession of co-owners is a case of duplicate possession
6) Preclude
Possession is an essential concept in legal system. Possession is a prima facie (First
impress which is right until it disprove) of ownership. It is classified into different kinds
and different ways for the acquisition of it

Q: 14 Discuss property. Explain various modes of

acquisition of
property.
1. Preface
All things come under the category of property which belongs to someone’s ownership or
possession is called property. Each and every person has right to make property for joyful
life. The concept of property is very ancient and its definition is different in various ages.
Multi jurists have tried to give a universal meaning to the word property but they all failed.
Today the word property is being used in different senses and it has been classified into
different kinds
2. Meaning of property
Property includes all those things which are source of income or wealth
3. Definition of property
Complete legal rights over things against others which is enforceable by law. Every man has a
property in his own. Every man has a right to preserve his property such as his wife, liberty
and estate”
4. Kinds of property
Property has of two kinds

a) Corporeal property

b) Incorporeal property

1. Corporeal property
Corporeal property is the right of ownership on material things. It is property that can be
touched and seen.
For example, real estate or personal property having a touchable form and structure, like a
building, equipment or vehicle.

A. Kinds of corporeal property

Corporeal property has the following kinds

I. Immoveable property
Immovable property is an immovable thing or property which cannot be moved from
one place to another place without destroying or shifting it such as property which is
fixed to the earth, such as land or a house.

Elements of immoveable property

Following are the elements of immoveable property
1) Immoveable property must covers portion of the surface of the earth
2) It includes the ground beneath the surface
3) It includes object which are on or under the surface which are natural e.g. mineral
and natural plants
4) It includes objects on or under the surface which are manmade e.g. buildings or
fences etc.

II. Moveable property

Moveable property is a moveable thing or property which can be moved from once
place to another place. A property that a person can take with him such as Car, plane,
money etc.

Real property
Real property relates to immoveable things. Real Property consists on buildings, roads
or land itself which has been legally recognized by law is called real property

Personal property
Personal property relates to moveable things. Personal property consists on vehicle
,animals, jewelry ,furniture etc which are legally recognized by law is called personal
property
2. Incorporeal property
Incorporeal property is untouchable property which can be transferred from one
person to another person but actually such kind of property does not have a physical
object for example share in limited company
Following are the two sub types of incorporeal property.

1. Rights in Re propria
Right in re propria is a full ownership on immaterial things such as copy rights,
trademarks and patents etc.

2. Rights in Re Aliena
A right in the property of another person or right on land of another person such as
right of way from land of other person
5. Modes of acquisition of property
Following are the four modes of acquisition of property

1. By Possession
Possession is one of the most important element of acquisition of property.m It is
absolute fact that possessor may owner of the thing because possession is the evidence
of ownership. If a person is in possession of a thing, ownership cannot be snatched ,
except by the true owner in accordance with the law. If a person claims that he is the
owner of a piece of land ,there are two ways to show himself as owner, first by way of
possession in fact and 2nd by way of law

2. By Transfer
Property can also be transferred /acquired from one person to another person by an
agreement between the parties . The basic element of agreement is legal willingness of
the parties. An agreement is the expression of the persons that they wanted to bound
themselves in legal relation

3. By succession
On the death of a person, there are certain rights which pass to his heirs or successors..
Physical thing are inheritable such as buildings, money, and land etc.

4. By prescription
Prescription is a method of acquiring property from a legal owner by operation of law
for a specified time and , such property is usable during the specified time without any
interruption. Rights of using the thing will automatically be abolished after ending of
specified time period
Following are the sub types of prescription.
A. Positive prescription
A person can acquire property by positive prescription by real owner of the property for
a specified time and after ending of specified time the real owner can take back his
property from that person who was enjoying the property during the prescriptive time

Example
If A is enjoying a right of way from his neighbor’s land for 20 years
Then at the end of this period, he not possesses it but also own it by way of easement

B. Negative prescription
Negative prescription has two kind

Perfect negative prescription

Perfect negative prescription is the destruction of right e.g. if owner remained
untouched with his land over the period of 12 years such dispossession allows current
possessor to acquire property

Imperfect negative prescription

Imperfect negative prescription is the destruction of right e.g. even if owner is touched
with is his land continuously even after his possession ,he has lost his right upon his own
land

Example
Debt (Qarz) is an example of imperfect negative prescription. The right is not
destroyed for a partial payment. Creditor still has right to collect rest amount
6. Preclude
Preservation of property or acquiring property by different means is a right of a legal person.
Property is a source of income that’s why it has been secured and recognized by the rule of
state. Every person has right to have property for the betterment of his social life
Q # 15: Explain the difference between substantive law and
law of procedure.
1. Preface
Enacted law either substantive law or procedural law. Substantive laws are the body of rules
which provides legal rights and responsibilities in civil laws as well as it defines the relationship
between the people and the state Substantive law consisted of written rules passed by
legislature of the state. Procedural laws are body of rules which provides the process of
proceedings of the court in criminal and civil and administrative proceedings.. The difference
between these two is very important as every lawyer has to get in touch with them in their daily
routine
2. Definition of Law of procedure
Procedural laws are body of rules which provides the process of proceedings of the court in
criminal and civil and administrative proceedings.
3. Elements of procedural law
Following are the elements of procedural law

1. Summons
A summons is a paper issued by a court informing a person that a complaint has been
filed against him/her. This is a form of legal process that instructs the defendant to
appear before the court on a specific day and to answer the complaint made by the
plaintiff.

2. Pleadings
The pleadings are every legal document which is filed in a case by parties according to
their claims and defenses, for the Judgment of the court

3. Proof
Proof is confirmation of the fact by evidence which is basically a necessary data which
helps the court to make his decision for the case

4. Judgment
A judgment is the official and authentic decision of court which can be in form of
decision, opinion or sentence given by the court.

5. Execution
Execution is the use of physical force of the state for enforcing the judicial decision of
court which can be death sentence or seizing of property etc.
4. Definition of Substantive law
Substantive laws are the body of rules which provides legal rights and obligations of the people
as well as it defines the relationship between the people and the state
5. Difference between substantive and procedural law
Procedural law provides the process that how a case will go through. The procedural
law determines how the proceedings will occur.
Substantive law defines how the facts in the case will be handled, as well as how the crime is to
be charged
Substantive law determines rights and procedural law determiners the remedies “

Criticism of Salmond
The whole law of remedies does not belong to procedural law as a right to
recover damages is a remedial right. But it belongs to substantive law and not law of
procedure

1) Exclusive evidential fact

There is a rule that a contract can only be proved by writing. This rule relates to
substantive law that a contract should be in writing. In this case writing is the exclusive
evidence of contract. While Procedure law is that how a contract can be comprise

2) Conclusive evidential fact

Procedural law says that the child under the age of 8 cannot have a criminal intention
And substantive law exempts such a child from punishment

3) Limitations of actions (after a fixed period limitations expires for a case)

The limitations of actions are the procedural prescription of right. The procedural law
destroys the bond between right and remedy and substantive law destroys the right itself
after expiry of the specified time
6. Other difference between substantive and procedural
law
Following are the other differences between procedural and substantive law

1. As to purpose
Purpose of substantive law is define rights and obligation of the people Procedural
Purpose of procedural law is to define the proceeding of the courts

2. Dealing with matters

Substantive law deals with the matters outside of the courts
Procedural law deals with the matters inside the court

3. Supremacy
Substantive law is supreme in nature
Procedural law is sub ordinate in nature

4. Branch of law
Procedural law is a branch of law which provides the process for petitioners
All the rest are substantive law
5. Subject matter
Subject matter of substantive law is to regulates the affair controlled by the judicial
proceedings
Subject matter of procedural law is to regulates the conduct of affairs in the judicial
proceedings

6. Facts constitute (Thehrana) a wrong

Facts constitute a wrong is determined by substantive law
Facts constitute proof a wrong is a question of procedure

7. As to abolition of punishment
The abolition of capital punishment is an alteration of substantive law
The abolition of imprisonment for debt is only alteration of procedural law as the
imprisonment for debt is only an instrument to enforce payment

8. As to connection
Substantive law is connected with the public at large
Procedural law is connected with the parties

9. Relation
Substantive law develops the relation of petitioner with subject matter
Procedural law develops the relation of petitioner with court in according with
subject matter

10. Appearance
Substantive law provides substance of law in the shape of statute
Procedural law is the law of actions
7. Preclude
Substantive law which defines our rights and duties is, of course very important to us. Procedural
law needs to be strictly followed. Legal researchers and law students simply needs to understand
that procedural laws are the rules for the legal “game” and they open the door for proceedings. .
When students will prepare with the basic sources for finding and learning these rules, they are
ready to enter!
Q # 16: Explain the difference between substantive
law
and law of procedure.
1. Preface
The concept of ownership is one of the fundamental concepts which is common in all system
of law. This is a legal relation between people and things these things may be corporeal or
incorporeal and may be moveable and immovable. Concept of ownership began when people
started planting tree, cultivating lands and constructing buildings. They began think in term of
“Mine” that is called ownership. The ideal of ownership followed the idea of possession
2. Literal meaning of ownership
The literal meaning of the term “own” is “to have or hold a thing”
3. Definition of ownership
In the legal sense the term ownership carries the meaning of right over a thing to the
exclusion of all other persons.
4. Essentials elements of ownership
Following are the essential elements of ownership

1. Right to use
The owner has full liberty to use it there is no restriction on owner about usage of thing.
But legal system impose a duty on an owner that owner must use his right of ownership
without disturbing other persons

2. Right to disposition
The owner has right of disposition of thing or property. Every owner can dispose of his
property during his lifetime or by will after his death

3. Right to possess
The owner has a right to possess the thing which he own. Whether he has actual
possession of it or not

4. Right to Exhaust (khatm krna)

Owner has a right to exhaust the thing while using it. It is not concern that thing is
material or immaterial in nature

5. Right to destroy
Generally, Owner has the right to destroy the thing he owns. There is no legal objection
on it as well as he will not be charged against this destruction

6. Right of benefit
Owner has full right to gain different types of benefits, by selling or giving the thing on
rent in order to earn money from property

7. Residual character
Ownership has residual (Baqia) character. Owner can use thing by different ways but his
ownership will not be disturbed in any situation.

8. Example
If A, give his land on lease to B and easement to C, His ownership of the land still
consists of the residual rights
5. Modes of acquisition of ownership
Following are the modes of acquisition of ownership. Details are as under.

1. Original acquisition
Original acquisition means an acquisition of a property or estate which has
never been the property of another. This is original acquisition because such
things may have not been used commonly by someone before this. Such
acquisition is called original acquisition

2. By Transfer
Transfer of ownership is frequent mode of acquisition and ownership of a
property is transferred from one person to another
It only can be possible only by contract in form of sale, gift etc.

3. By Succession
It belongs to the family Law and after someone’s death property passes to his
legal heirs and they become owner by succession

4. By Prescription
It belongs to property Law. It means continued occupation by someone over a
thing from a long period
In Islamic legal system such kind of Ownership can’t be acquired by
prescription
But In modern age in English system, such acquisition is allowed and can be
acquired which is illegal exercise
6. Kinds of ownership
Following are the kinds of ownership

1. Corporeal and incorporeal ownership

a. Corporeal
Ownership of a material objects. Corporeal things are those things which are touchable
things e.g. ownership of house, car etc.

b. Incorporeal
Ownership of immaterial things. Incorporeal things are those things which are
untouchable e.g. ownership of copyright, ownership of trademark etc.

I. Trust and beneficial ownership

a. Trust (Kherati) ownership

A trust ownership is such ownership which is owned by one party for the benefit of
another. The ownership of trustee in not real. He is under an obligation to use his
ownership for the benefit of other

b. Beneficial ownership
In which one who is under an obligation to use ownership for the benefits to others.
because right of ownership belongs to him though the legal title is belongs to another
one

Example
If property is given to X, on trust for Y. X would be trustee and his ownership would be
trust ownership and Y would be the beneficiary and his ownership would be beneficiary
ownership

II. Legal and equitable ownership

a. Legal ownership
Legal ownership is such ownership which is recognized by the common law. A person
who have full control over a thing to use or sale it or has a power to convey rights to
others , is called legal owner

b. Equitable ownership
Equitable ownership is such ownership which is taken by rules of equity. In many case
equity recognizes ownership where common law does not recognize ownership due to
having some defects in legal rules. Equitable ownership always implied as legal
ownership

III. Sole ownership and co ownership

a. Sole ownership
Sole ownership is such ownership where only a one person is owner of a property at a
time. It is called sole ownership.

b. Co ownership
When two or more persons have a right of ownership on a same property at a same
time, is called Co-ownership

A. Forms of co ownership
Following are the two forms of co ownership

Ownership in common
In common ownership, after the death of a person, rights transfer to his successors like
inheritable rights

Joint ownership
In joint ownership, on the death of one owner, the ownership dies with the dead person
and it transfers to other co-owner while heirs of deceased person are not eligible for
inheritance

Illustration
If a property belongs to X and Y in equal shares. And X dies, it ownership in common half
of the property passess to the heirs of the X. And if the ownership is joint, Y would be
entitled to the whole property and heirs of the X would get nothing

IV. Absolute and limited ownership

1. Absolute ownership
Absolute owner is one who has full rights over a thing to the exclusion of all , and where
no one can interfere in rights of ownership

2. Limited ownership
When some limitations have been imposed on owner , limitations can be related to
disposal of things or destructions of things etc.

V. Vested and contingent ownership

1. Vested ownership
To give particular legal authority, power or rights of possession and use, of land or other
property, is called vested ownership

Example
Property is given to A for life and remainder (Baad Main) to B.
B cannot enjoy the rights until A dies

2. Contingent ownership
Contingent ownership dependent upon the possible occurrence of a future happening,
the happening of which is not guaranteed that it may happens or not

Example
A executes a deed in favor of B. according to which he entitles to the possession of
certain property when he attains the age of 21 , the rights is contingent right and it will
be vested only when he attains the age of 21

A. Difference between vested and contingent ownership

Following are the differences between the vested and contingent ownership

1. As to title
In vested ownership the right of the owner is perfect
In contingent ownership the right of the owner is imperfect

2. As to nature
In vested ownership of the owner is absolute
In contingent the ownership of the owner is conditional

3. Necessary element
There is no chance of missing of some conditions because there are no certain
conditions for fulfillment of this ownership
In contingent there is a chance of missing of some conditions

4. As to right
In vested ownership, owner has immediate right of enjoyment
In contingent ownership, owner has not immediate right of enjoyment

5. Death of transferee
Vested ownership never gets hurt even by the death of a transferee
Contingent ownership cannot take effect by the death of transferee
7. Preclude
The concept of ownership is very ancient concept. When a person starts a business or constructs
a building only one word moves in the minds of all people which is “mine. Law of the state has
defined a lot of rules and regulations to give protection to the property of people which have
different modes. Implementation of those rules is being made by the court of law according to
common law rules
Q # 17: Discuss the primary and secondary functions of
the court
of law?
1) Preface
Court of law has to perform two different kinds of functions which is primary and secondary
functions. Primary function of the court is to the administration of justice. It has to enforce
rights and give punishments to wrong. In addition with rest all functions are also performed by
courts of law , which are known as secondary functions of the court. Court performs four
functions that are establishing standards, maintaining order, resolving disputes and protecting
liberties and rights of the people.
2) Meaning of court
“A place where justice is administered “
3) Functions of courts of law
Following are the two functions of the court of law
4) Primary functions
The Primary function of court of law is the administration of justice. Details are as under:

1. Administration of Justice
Administration of justice is a process by which court maintains the rights within political
community by means of physical force of the state

2. Necessity of administration of justice

In old age, might (Taqatwar) was the sole (Akela) right. Every man was his own judge. A
person wronged would seek revenge by his own hands. To stop this negativity, it
appears necessary that some strong tribunal should hold administration and now day’s
courts are performing this duty. Because without a common power to keep them all in
their limits. it is not possible to live in a society
5) Classification of administration of justice
Administration of justice in divided into two parts:

1) Administration of civil justice

2) Administration of criminal justice

1. Administration of civil justice

Administration of civil justice deals with in civil proceedings. The purpose of civil justice
is to enforce rights

Kinds of rights
There are two kinds of rights connected with civil justice.
I. Primary rights
The Fundamental rights are defined as basic human rights within the society
Every citizen has the right to enjoy his life with all rights
These rights universally apply to all citizens, irrespective of race, place of birth, religion,
caste or gender.

II. Secondary rights

Secondary rights are those rights which come into existence after the violation of
primary rights.
The right to the compensation of damages by the wrong doer is secondary right
The right to exact the imposition of penalty on the wrong doer by penal action

Example
o If A enters into a contract, performing a contract is his primary right. If B
breaches that contract, he is compensated against the loss of contract
which is his secondary right

2. Administration of criminal justice

Administration of criminal justice is dealt with in the criminal proceedings. The object of
the criminal justice is to punish the wrong doer. From very ancient time, a number of
theories have been given related to giving of punishments which have been divided into
two classes. According to first class, the object of the criminal justice is to protection of
the state and society. According to second class, the purpose of punishment is revenge

i. Aims of criminal justice

Following are the aims of criminal justice.
1) Enforcement of criminal law
2) Protecting society through maintaining law and order
3) Help of the victims
4) Punishment to criminal
6) Secondary functions
Court are primarily performed the primary functions of the court. But once they
established, they are also perform secondary functions. The secondary functions of the
courts are rapidly increasing with the growth of civilization
Following are the four major groups which fall in the category of secondary functions of
the court

1. Actions against the state

The courts can take judicial notice against the state upon claims made by the citizes. If a
person says that his legal right has been violated by state, and raises an action against
the State, he can file a petition of right in a court of law. The court will investigate the
claim and pronounce (sunaye gi) judgment in accordance with law. But as the courts
perform part of the State itself, no one can compel the court to take action against the
defendant.

2. Declaration of rights
Another function of the courts is the declaration of the rights of individuals. A petitioner
may require the assistance of a court of law not only for the enforcement of any right
but also for a declaration of right exists

3. Administration of property
The third secondary function of the court in certain cases, courts of justice start the
management and distribution of the property of deceased person by means of
administration of trust. Examples are the administration of a trust. Bankruptcy of a
bankrupt company by the court etc.

4. Titles of right
In certain cases, courts are working in order to create, and transfer of rights. Examples
of such functions are decree of divorce, appointment or removal of trustee etc. In such
cases, the judgment of the courts operates not as remedy of the wrong but they
operate for title of right
7) Preclude Remarks
There is no doubt that the government systems run through the courts of law. Court of law plays
a pivotal role in the administration of justice. Court pronounces the rights and obligation in
accordance with common law rules of the state. Functions of courts which basically are the
decisions and the at decision are enforced by rule of law and by law enforce authorities
‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار ہو میں‬

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