There is no express enactment by which the Pakistan’s legislature can assume to render foreigners subject to the criminal law with reference to acts committed by them beyond the limits of Pakistan. In the words of chief justice Cock burn,
” proposition of law can be more incontestable or more universally admitted than that, according to the general law of nations, a foreigner, though criminally responsible to the law of the nation not his own for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits . The rule must however, be taken subject to this qualification, namely6, that if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incumbent, on the courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations.”
The acts of a foreigner committed by him in the territory beyond the limits of Pakistan do not, therefore constitute an offence against the penal code, and consequently, a foreigner cannot be held criminally responsible under that code by the tribunals of this country for acts committed byhim beyond its territorial limits.
It is only for acts done when the person doing them is within the territory over which the authority of Pakistan law extends, that the subjects of a foreign state owe obedience to that law and can be made amenable to its jurisdiction. Thus when it is sought to punish a person, who is not a Pakistani subject, as an offender in respect of certain act, the question is not, where the act was committed, but, was the person at the time when the offence was committed, within the territory of Pakistan.
Extradition means the surrender of fugitive offender by one state to another in which the offender is liable to be punished or has been convicted. The law of extradition is founded upon the broad principle that it is to the interest of
Civilized communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of the nations that one state should afford to every assistance towards bringing persons guilty of such crimes to justice.
Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.
The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders.
Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries.
The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained.
Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of Ira Einhorn, in which some US
Commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law.
OFFENCES AGAINST THE STATE:
The offences against the state may be classified as under:
1. Waging or attempting or conspiring to wage or collecting men and ammunition to wage war against the government of Pakistan (sections 121, 121-A, 122 and 123 of Pakistan penal code.)
2. Assaulting president, or governor of any province with intent to compel or restrain the exercise of any lawful power.
(Section 124 of Pakistan penal code).
3. Sedition (section 124-A of Pakistan penal code).
4. War against the government of any asiatic power at peace with Pakistan or committing depredations on the territories of such power (sections 123 – 126 of Pakistan penal code)
Section 75 of Pakistan penal code provides that whoever, having been convicted by a court in Pakistan of an offence punishable under chapter XII or chapter XVII of the code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under any of those chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life , imprisonment for either description for a term which may extend to ten years.
The above section does not create a substantive offence, but only imposes a liability to enhanced punishment under the following conditions:
1. The previous conviction must have been under chapter XII or chapter XVII of the Pakistan penal code punishable with three years imprisonment.
2. The previous conviction must not have necessarily resulted in the awarding of three years punishment, but it must be an offence punishable with three years imprisonment or more.
3. The subsequent offence must have been committed after the previous conviction, i.e, the section is inapplicable to offences committed at one and at the Sid time.
4. The subsequent offence must be an offence punishable with three years imprisonment or more.
5. The subsequent offence must fall under chapter XII or chapter XVII and be punishable with three years imprisonment or more before section 73 of the Pakistan penal code can be made applicable.
COMMON INTENTION AND COMMON OBJECT
Section 34 of the Pakistan penal code deals with constructive criminality i.e., liability of all for acts done by one or more. This section was introduced in order to meet the cases in which it may be difficult to apportion the liability of each member according to his participation in the commission of the crime. Since it is difficult to distinguish precisely the part taken by each member of a group, it was thought necessary to declare all the persons equally liable for the acts done. Section 34 does not create a distinct offence; it only lays down the principle of joint criminal liability. So it is a rule of evidence only and does not create a substantive offence.
The words “furtherance of common intention “have been the subject of much discussion amongst the lawyers and conflicting interpretations have been put forth.
One common agreed point has, however, been that furtherance of commonly design is the condition precedent for joint liability under section 34. The words common intention means unity of purpose or a pre-arranged plan.
INGREDIENTS OF SECTION 34 PPC
1. Two or more persons.
2. They must have a common intention to commit an offence.
3. Participation by all the accused in doing act or acts in furtherance of that common intention.
Section 149, like section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence. It runs as under: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence , is a member of the same assembly, is guilty of that offence”.
The essence of offence under section 149 of Pakistan penal code is assembly of several persons ( not less than five in any case ) having one or more of the common objects mentioned in section 141. Section 149 creates joint liability of all members of an unlawful assembly for criminal for criminal act done by any member in prosecution of the common object of the said assembly.
So the essential ingredients of section 149, P.P.C are:
1. There must be an unlawful assembly as defined in section 141 of ppc.
2. Criminal act must be done by member of such assembly.
3. Act done is for prosecution of the common object of the assembly, or such which was likely to be committed in prosecution of the common object
4. Members have voluntarily joined the unlawful assembly and know the common object of the assembly.
DIFFERENCE BETWEEN SECTIONS 34 AND 149 PPC:
To a certain extent both sections are overlapping and both can be invoked against the accused when there is no difference between the object or intention with which the offence is committed. But it was pointed out in a case by Privy Council that there is such difference in the scope and applicability of section 34 and 149 inspire of their similarity. Section 149 is wider in its sweep and longer in its reach than section 34. The actual participation in action is the essential element of section 34 but membership of the unlawful assembly is the leading feature of section 149 PPC. Section 34 merely declares a rule of criminal liability but section 149 creates a specific offence. Common object is different than common intention as it does not require prior concert and a common meeting of minds but an unlawful object is developed when people assembled together. At least two persons are required to share the common intention under…..