Appraisal and Appreciation of Digital and Modern Devices Evidence in Criminal Trial
Chapter-2
The kinds of the Crimes in the range of which trial is conducted to be addressed through Digital and Modern Devices Evidence.
In crimes it may include:
- Homicide
- Rape
- Abduction
- Child abuse
- Solicitation of minors
- Child pornography
- Stalking
- Harassment
- Fraud
- Theft
- Drug trafficking
- Computer intrusions
- Terrorism
First of all before understanding or interpreting/ addressing these crimes first of all I have to understand the crime and criminology philosophy to deal with them, for which same are categorizing the crime:
Crime and criminology and entertainment Media our Electronic Media / Pervade the news, Films and re-enactment Dramas of on stories of crime, criminals and the punishments of criminals, almost everyone is facilitated by crime, sometimes people romanticize criminals so that out laws like Robin Hood, Sultan Dacoit and Jasse James became folk heroes, at other times we react with fear from becoming a victim of crime.
CRIMINOLOGIST:
Looking to crime problem, prompting questions such as;
- why do people commit these crimes,
- How should we respond?
- Why is that behavior a crime?
- We might exclaim about some outrageous but legally permissible behavior etc.
A criminologist is one who studies crime, criminals and criminal behavior, one who attempts to determine the causes of crime.
CRIME:
A Crime is defined such as acts which are not authorized by law, or prohibited act or actions,
Under Section 40 Pakistan Penal Code 1908 it is defined as: “offence denotes the thing made punishable under the law”
In Criminal Procedure Code 1989 it is defined as: 4(o) Offence:
Offence means any act or omission made punishable by any Law for the time being in force: it also includes any act in respect of which a complaint may be made under section 20 of the CattleTrespass Act 1871.
THE DEFINITION OF A CRIME:
It should enable us to recognize any act (or omission) as a crime, or not a crime by seeing whether it contains all the ingredients of the definition, but reflection will show that this is impossible, when parliament enacts that a particular act shall became a crime or that an act which is now criminal shall cause to be so, the act does not change in nature in any respect other than that of legal classification. All its observable characteristics are presently the same before as after the status comes into force, it also depends upon religion and customs of a society.
Suicide Act 1961
Home sexual acts in private by male person who attended age of 21 were offence until 27 July, 1967 when by sexual offence act 1967 such act became permissible.
The nature of the acts in question, their morality or immorality and their consequences does not change over night but legal nature does.
CHARACTERISTICS OF A CRIME.
(1) Public wrong it is a antisocial conduct , it is ofcourse possible to point to certain characteristics which are generally found in acts which are crimes. They are generally acts which have a particular harmful effects on the public and to more than interface with private rights, Sir Carleton writes.
“Crime is crime because is consists in wrong doing which directly and in serious degree threats the security or well-being of society, and because it is not safe to leave it redressable only by compensation of the party injured”
But it is not necessary that state is directly effected in all offences of public wrong for certain reasons, the public nature of crime is by the contrast between the rules of civil and criminal laws looking to the native of crime or wrong, even a pure civil native act which is called a civil wrong ended to punishments provided in criminal law like imprisonment in jail, forfeitures- fine, attachments. so we final civil persons in jails under the judgment of civil, family, rename courts.
Like wise in purely criminal native offence state many have or not have therefor in our penal code section 309,340. PPC R/W section 345 Cr: Pc one can wave a case of with or without receiving Diyat but looking to the gravity of offence, the courts may u/s 311 P.P.C Pass sentence up to yeans as imprisonment if the act of offender is gravitons’ painful, cruel.
In practice, of counse, the public Prosecutors who have no personal interest in the court come and in some cases victim even willing to excuse the offender can not prevent the Prosecution of offender although such individual started the Prosecution but he has no right to discontinue.
Offence catch in camera, CCTV recording, photography of commission of offence audio tape recording evidence one most valuable pieces of evidence that are sufficient to convict an offender, such evidence provides live rejection of crime but one of beauty of our law is that if the judge is himself a eye witness of the offence the is prevented by law to inflect punishment upon the offender.
Characteristics:
- Act which have harmful effect upon Public.
- Interference on private rights.
- Wrong doing x threat to security.
- If it is permitted to continue cause great harm to society or class of society or a particular sect or religion, con not permitted for wellbeing of society.
A Moral Wrong / Natural Wrong:
The second characteristics of crimes which is usually emphasized that they are acts which one morally wrong. A crime either yellow color or white color crime are immoral acts deserving for punishment, in early days of laws and in Islamic jurisprudence which is one of the basic laws in the world most outrageous acts were prohibited like qatl, robbery, rape, sodomy etc. This was no doubt true. But now many acts are prohibited on the ground of social expediency and not because of their immoral native Like computer offence, industry offence, non- payment of taxes, smuggling, traffic offence, those offences are called white color crimes, has put further legislation on its rules of quires, Islam.
Moreover many acts which are generally regarded as immoral are not crimes in many parts of the world like homosexual, adultery suicide or its attempt. Thus the test of immorality is not a very helpful one in all cases.
Definition of wolfendon committee on Homosexual offences and its prosecution is that enforcement of morality is: to preserver public order and decency to protect the citizen from what is offensive or injurious and to provide sufficient safe guards against exploit ion and corruption of other, Particularly those who are specially vulnerableand it is not private lines of citizens or to seek enforce any Particular pattern of behavior.
A very famous ‘Shaw’s case concludes lord Devlin, Settles for the purpose of the law ” that morality in England means what twelve men and women think it means – in other words it is to be ascertained as a question of fact.” So the crime is such action which is prohibited under the law or it is an omission when the law directs to do same act.
Illustration:
A Police man posted on lock up/ jail to supervise a prisoner, the prisoner escapes, he commits offence.
Elements of Crime:
Every crime consist upon specific elements:-
Mensrea :- mensrea or guilty mind, it is mental element of crime, it is an essential element of crime called intention.
Crimes without mensrea:
There are number of crimes which not necessary requires mensrea like Traffic offence, mischief or member of a un lawful assembly, who may not have an intention to commit crime but being member of such un lawful assembly he is liable for same punishment.
Actus Reus:
Acts Reus or guilty act is physical element in a Crime, it is comprised of conduct that is prohibited or of failure to act in a manner required by the criminal law.
It is logic that a guilty mind cannot commit an offence until Physical elements are not involved in commission of offence, as I have discussed that an offence can be committed in absence of mensrea but in all action re us causes harm to a individual or state is an offence though the punishment are reduced be cause seriousness is missing such offence falls either called infractions or offences punishable by relatively small fines or simple or non -capital punishments. it is also one of ground for lesser punishment if offence is missing “intention” to commit offence under mitigation circumstances.
The descriptors of criminal law do not apply to civil law violations (torts ), There is a great distinction between criminal and civil law, which reflects from pecuniary punishment and mandatory compensation, criminal law act upon theory of “wrongs that injure society” while civil laws violation are legal wrongs against individuals.
In specific offences we can avail both civil and criminal remedies side by side.
KINDS OF CRIMES HIGHLIGHTED IN RESEARCH:
- Homicide
- Rape
- Abduction
- Child abuse
- Solicitation of minors
- Child pornography
- Stalking
- Harassment
- Fraud
- Theft
- Drug trafficking
- Computer intrusions
- Terrorism.
Homicide:
The term homicide covers murder which means that when someone knowingly causes the death, or injuries resulting in death, of another person .
Local laws applicable to Homicide:
Chapter 16 of Pakistan Penal Code:
Chapter 16 of Pakistan Penal code pertains to injuries or wounds, it is called Qissas and Diyat Chapter, it was promulgated by ordinance. The nature of hurts and their punishments are prescribed keeping in view injunction of islam relating to human body.
All categories of Qatalcomes in homicide, particularly committed with gunshot wounds are related to my research.
Hurt is defined in section 332 p.p.c means wound but death is not committed, it causes pain, harm, disease.
Section 299 p.p.c, provides Definitions pertaining to hurt, wound & injuries.
- Section 300 of p.p.c is qatl-e-amad.
- Section 301 p.p.c is very akin to homicide.
- Section 315 p.p.c is qatal-shibi-amad.
- Section 318 p.p.cqatal-e-khata.
These categories comes in homicide.
Every Qatal can be homicide but every homicide might not be qatl-e-amad.
Rape:
He who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,
- Against her will?
- Without her consent?
- With her consent, when the consent has been obtained by putting her in fear of death or of hurt?
- With her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married? or
- With or without her consent when she is under sixteen years of age.
Explanation.offence of rape.
Penetration is sufficient to constitute the sexual intercourse necessary to the
376. Punishment for rape. (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.
- [(1A) Whoever commits an offence punishable under sub-section (1) or sub-section (2) or section 377 or section 377B and in the course of such commission causes any hurt punishable as an offence under section 333, section 335, clauses (iv), (v) and (vi) of sub-section (3) of section 337, section 337C, clauses (v) and (vi) of section 337F shall be punished with death or imprisonment for life and fine.] (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.]
- [(3) Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine.] (4) Whoever being a public servant including a police officer, medical officer or jailor, takign advantage of his official position, commits rape shall be punished with death or imprisonment for life and fine.]
- [376A. Disclosure of identity of victim of rape, etc. (1) Whoever prints or publishes name or any matter which may make known identity of victim, against whom an offence under sections 354A, 376, 376A, 377 and 377B is alleged or found to have been committted, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. (2) Nothing is sub-section (1) extends to any printing or publication if it is 1Ins. by Act XLIV of 2016, s.5 and 6.
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- by or under order in writing of officer-in-charge of the police station or police officer making investigation into such offence acting in good faith for the purposes of such investigation? or
- by or under order of Court? or
- by or with authorization in writing of the victim? or
- by or with the authorization in writing of natural or legal guardian of the victim where the victim is dead or a minor or of unsound mind.
Explanation. Printing or publication of judgment of any High Court, the Federal Shariat Court or the Supreme Court in law journals does not amount to an offence within the meaning of this section.]
Abduction:
Abduction. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Punishments for kidnapping. Whoever kidnaps any person from 2[Pakistan] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Kidnapping or abducting in order to murder. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 3[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Illustrations
- A kidnaps Z from 2[Pakistan], intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
- A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.
1[364A.Kidnapping or abducting a person under the age of 2[fourteen]. Whoever kidnaps or abducts any person under the age of 2[fourteen] in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with 3[imprisonment for life] or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years.]
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