Kembaraxtra-Islamic Law - Overview
Crimes under Islamic law are classified according to the nature of the rights affected. First, there are crimes against society, which are punished to safeguard public interest and social order. Most ḥadd offences fall within this category. Second, there are crimes against individuals, which are punished to protect private rights; these include offences governed by qiṣāṣ and diyah. Ta‘zīr offences may involve either public rights or individual rights, depending on the nature of the wrongdoing.


Ḥadd offences such as zinā (unlawful sexual intercourse), theft, qazaf (false accusation of zinā), consumption of intoxicants, hirābah (highway robbery), baghy (rebellion), and riddah (apostasy) are crimes for which punishments are fixed and prescribed by Allah. Once the offence is proven, these punishments must be imposed without regard to the offender’s status. They cannot be reduced, increased, annulled, or altered by the court or any authority. Accordingly, the judge has no discretion in sentencing once a ḥadd offence is established.


In Malaysia, Syariah courts operate parallel to the civil courts, but their jurisdiction is constitutionally limited. Syariah courts have authority only over Muslims and derive their criminal jurisdiction from State laws enacted under Article 74(2) of the Federal Constitution and the Ninth Schedule (State List). Their sentencing powers are further restricted by the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits punishment to a maximum of three years’ imprisonment, a fine of RM5,000, six strokes of whipping, or any combination thereof. This jurisdiction is significantly more limited compared to even the First-Class Magistrates’ Court in the civil system.


As a result, offences against decency under the Syariah Criminal Offences (Federal Territories) Act 1997, such as zinā, incest, sodomy, and prostitution, carry punishments that do not correspond with the punishments prescribed in the Qur’an and Sunnah. Under Islamic law, the punishment for fornication is one hundred lashes, and for adultery, stoning to death, whereas under the 1997 Act, zinā—regardless of whether it is fornication or adultery—is punishable only by a fine, short imprisonment, whipping of up to six strokes, or a combination thereof.


Given these limitations, the current criminal jurisdiction of the Syariah courts is insufficient to fully enforce Islamic criminal law in Malaysia. It is therefore argued that the legislature should consider enhancing the Syariah courts’ criminal jurisdiction, ensuring that punishments are proportionate to the seriousness of offences and effective in deterring repeat criminal conduct.

​
KembaraXtra-Malaysian Criminal Law-Introduction-Historical Background of Criminal Law in Malaysia

1. Introduction

• To understand the development of criminal law in Malaysia, it is essential to first understand the historical evolution of the Malaysian legal system.
• Malaysian criminal law did not develop in isolation but evolved through:
  • indigenous customs,
  • religious influences (especially Islam), and
  • later colonial intervention.

1.7.1 Before the European Occupation

2. Early Indigenous Legal Systems

• From ancient times, the Malay Peninsula and Borneo were inhabited by various aboriginal tribes.
• These communities practised primitive tribal legal systems based on:
  • customs,
  • traditions, and
  • social norms.
• Laws were largely:
  • unwritten, and
  • enforced through community practices.

3. Development of Social and Political Structures

• Over time, social organisation evolved from:
  • villages → river states → city-states → empires.
• This evolution led to more structured systems of governance and law.
• Major empires emerged in the Malay Archipelago, including:
  • Srivijaya, and
  • Majapahit.

• These empires covered vast regions across:
  • the Malay Peninsula,
  • Sumatra,
  • Java,
  • Borneo, and surrounding areas.

4. Role of Adat (Customary Law)

• During these early periods, law was primarily governed by adat (customary law).
• Adat left a lasting influence on the legal systems of the region.
• Among the Malays and natives of Sabah and Sarawak, adat was categorised into:
  • Adat Perpatih – matrilineal custom;
  • Adat Temenggung – patrilineal custom.
• Adat governed matters such as:
  • social conduct,
  • disputes, and
  • punishments for wrongdoing.

5. Introduction of Islamic Law

• With the spread and acceptance of Islam, Islamic legal principles began to influence local laws.
• The State of Malacca, a major trading centre and regional power, played a central role.
• Malacca introduced the Laws of Malacca (Hukum Kanun Melaka) during the reign of Sultan Muzaffar Shah (1446–1459).

6. Laws of Malacca (Hukum Kanun Melaka)

• Covered a wide range of legal matters, including:
  • criminal offences,
  • commercial transactions,
  • family law,
  • evidence and procedure,
  • duties and powers of rulers.
• Punishments were a combination of:
  • Islamic law, and
  • Malay adat.

7. Influence on Other Malay States

• The Laws of Malacca were adopted and adapted by other Malay States, such as:
  • Pahang Laws (1596),
  • Kedah Laws (1605),
  • Johor Laws (1789),
  • Perak Code, and
  • Ninety-Nine Laws of Perak (1765).
• This reflects the widespread influence of Islamic-adat legal principles across the Malay States.

8. Terengganu and Islamic Legal Administration

• In Terengganu:
  • a 12th-century Stone of Inscription recorded Islamic legal principles.
• During the reign of Sultan Zainal Abidin III (1881–1918):
  • Islamic law was formally administered.
• Criminal punishments included:
  • Hudud,
  • Qisas,
  • Diyat, and
  • Ta’zir.
• The Terengganu Constitution of 1911:
  • provided for court structures, and
  • facilitated the administration of Islamic law.

9. Position Before European Colonisation

• Prior to European colonisation:
  • the law in the Malay States was predominantly Islamic law,
  • supplemented by local Malay customs (adat).


• This legal foundation formed the basis upon which later colonial criminal law developments were built.

KembaraXtra-Criminal Law-Introduction- Distinction Between Crimes and Civil Wrongs

1. General Overview

• Both crimes and civil wrongs involve undesirable acts or omissions in society.
• Despite this similarity, they differ significantly in:
  • nature,
  • purpose,
  • procedure, and
  • consequences.

2. Crimes as Public Wrongs

• Crimes are regarded as public wrongs.
• Grant Lamond:
  • crimes are public wrongs because the community is responsible for punishing them,
  • not necessarily because they are committed against the public at large.
• Nozick:
  • harm caused by a crime extends beyond the immediate victim,
  • it affects all who see themselves as potential victims.
• Therefore:
  • crimes concern society as a whole,
  • making it appropriate for the State to prosecute and punish offenders.

3. Nature of Criminal Responsibility

• A person incurs criminal liability when he/she commits an act or omission defined as a crime by criminal law.
• In criminal proceedings:
  • punishment is imposed not for compensation,
  • but as retribution and deterrence,
  • and as an example to others.

4. Nature of Civil Wrongs

• Civil wrongs are private wrongs committed against individuals.
• In civil proceedings:
  • the primary aim is compensation, not punishment.
• Remedy usually takes the form of:
  • damages payable to the injured party.
• This is described as restitutio in integrum:
  • restoration of the injured party to their original position.
• In rare cases:
  • courts may award exemplary (punitive) damages
  • to supplement civil remedies and ensure effectiveness.

5. Role of the State

• According to Kenny:
  • crimes attract punitive sanctions,
  • such sanctions cannot be waived by private individuals,
  • only the State (Crown) may remit punishment.
• Paton:
  • in crimes, the State controls prosecution, punishment, and remission.
• Criminal prosecution:
  • is initiated by the State on behalf of society and victims.
• A private individual cannot prosecute or pardon a crime independently.

6. Power of Pardon

• Winfield:
  • a crime is something that only the Crown (State) can pardon.
• This highlights:
  • the exclusive authority of the State in criminal matters

7. Civil Proceedings and Party Autonomy

• In civil cases:
  • proceedings are initiated by the injured party.
• Parties have control over the process, including:
  • settlement, compromise, or withdrawal of the claim.

8. Austin’s Distinction

• John Austin:
  • a wrong pursued by the sovereign (State) is a crime;
  • a wrong pursued at the discretion of the injured party is a civil injury.

9. Summary of Key Distinctions

• Crime:
  • public wrong
  • prosecuted by the State
  • punishment imposed
  • pardon/remission by State only
• Civil Wrong:
  • private wrong
  • initiated by injured party
  • compensation as remedy
  • parties may compromise

If you want, I can:

• prepare a comparison table for exams,
• simplify this into short-answer notes, or
• relate the distinction directly to Malaysian case law.

KembaraXtra-Criminal Law-Introduction-Criminal Law as Public Law

11. Criminal Law as Public Law

• Law is classified into:
  • national (municipal/domestic) law, and
  • international law.
• National law applies within a State to:
  • citizens, residents, and foreigners.
• National law is divided into:
  • public law, and
  • private law.
• Criminal law is part of public law.
• Crime is an offence against:
  • the State, and
  • society as a whole.

12. Purpose of Criminal Law (Wechsler)

• To express formal social condemnation of prohibited conduct.
• Supported by sanctions designed to prevent such conduct.

13. Purposes of Criminal Law (Nigel Walker)
Criminal law aims to:

1. Protect individuals from intentional violence and sexual harm.
2. Protect people from unintended harm (traffic, poisons, disease).
3. Protect vulnerable persons (children, mentally impaired).
4. Prevent acts regarded as unnatural even if consensual.
5. Defend the State (e.g. espionage).
6. Prevent public conduct that shocks or corrupts others.
7. Protect property from theft, fraud, and damage.
8. Protect social institutions such as marriage and family.

14. Social Interests Protected (Roscoe Pound)
L
Criminal law protects:

1. General interests (safety, health, order, transactions).
2. Social institutions (family, religion, politics).
3. General morals (honesty, integrity, public morality).
4. Conservation of social resources (rehabilitation and reform).
5. Social progress (economic, political, cultural).
6. Individual life:
   • freedom from arbitrary control, and
   • minimum conditions for human existence.

15. Enforcement of Criminal Law

• Criminal law:
  • prohibits harmful conduct,
  • prescribes penalties, and
  • is enforced by the State.
• Criminal proceedings involve:
  • police custody,
  • prosecution by the State,
  • trial before a court.
• Parties:
  • Prosecutor → represents the State;
  • Accused/defendant → person charged.
• Burden of proof:
  • prosecution must prove guilt beyond reasonable doubt.

16. Punishment and Acquittal

• If convicted, punishment may include:
  • fine,
  • whipping,
  • probation,
  • imprisonment,
  • life imprisonment, or
  • death penalty.
• If prosecution fails to prove the case:
  • accused is acquitted;
  • no punishment imposed.

KembaraXtra- Criminal Law-Introduction-Importance of Criminal Law
1. Importance of Criminal Law

• It is the duty of the State to provide security by maintaining law and order.
• Criminal law is a branch of law of paramount importance.
• For laypersons, the term “law” often refers to criminal law.
• Some commentators argue:
  • a society may survive without advanced constitutional or property law,
  • but no society can exist even one day without penal law.
• Penal law is essential for the existence of organised society.

2. Central Role of Criminal Law (Wechsler’s View)

• Criminal law provides ultimate protection against:
  • the gravest harms inflicted by human conduct.
• It authorises the strongest coercive powers of the State.
• Dual nature:
  • protective instrument, and
  • potentially destructive if misused.
• Risks:
  • weak criminal law → basic human interests endangered;
  • harsh or arbitrary law → grave injustice.
• Criminal law must therefore be:
  • rational,
  • just, and
  • carefully designed.

3. Criminal Law as an Instrument of Social Control

• The State uses criminal law as a means to an end in fulfilling its duty.
• Criminal law operates by:
  1. identifying harmful or undesired conduct;
  2. declaring such conduct as crimes;
  3. prescribing punishments for violations.


• Criminal law defines and punishes acts or omissions involving:
  1. attacks on public order (internal or external);
  2. abuse or obstruction of public authority;
  3. acts injurious to the public at large;
  4. attacks on persons or personal rights;
  5. attacks on property or property-related rights.

4. Punishment and Deterrence

• Kenny’s view:
  • conduct threatening safety, stability, or comfort of society is regarded as heinous.
  • society seeks to repress such conduct through State power.
• Punishment serves:
  • retribution against offenders, and
  • deterrence to potential offenders.
• Without punishment:
  • criminal law would be ineffective and meaningless.

5. Criminalisation of Conduct

• Identifying undesired or harmful conduct is complex.
• Kenny:
  • offences become crimes due to the combined effect of multiple social forces.
• Criminalisation is influenced by:
  • political,
  • social,
  • cultural,
  • religious, and
  • economic factors.

6. Dynamic Nature of Criminal Law

• Criminal law is not static but dynamic.
• Lord Atkin:
  • the scope of criminal law depends on what the State declares as crimes at a particular time.
• Common characteristic of crimes:
  • they are prohibited by the State, and
  • offenders are punished.
• Crimes originate from:
  • prevailing government policy.
• Criminal law may not always be consistent or logical.
• Political power at a given time determines what is criminalised.

7. Principles Guiding Criminalisation (Ashworth)

• Legislators should criminalise conduct based on seriousness, not symbolism.
• Punishment must be proportionate.
• Four key principles:
  1. Criminal law should censure substantial wrongdoing only.
  2. Enforcement must respect equality and proportionality.
  3. Accused persons must receive proper criminal procedural protection.
  4. Maximum and effective sentences must match the seriousness of wrongdoing.

8. Additional Legislative Considerations (Lord Williams)

Before criminalising conduct, legislators should consider:

1. Whether creating an offence is necessary;
2. Whether the conduct is sufficiently serious;
3. Whether existing laws or remedies are adequate;
4. Whether the offence is practically enforceable;
5. Whether the offence is clearly and legally drafted;
6. Whether the penalty is proportionate to the offence.

9. Functions of Criminal Law

• Criminal law:
  • maintains peace, stability, and security;
  • protects life, body, mind, property, and reputation;
  • prescribes punishments for harmful conduct.


• Right to life is protected under Article 5(1) of the Federal Constitution:
  • no person shall be deprived of life or personal liberty except according to law.

10. Categories of Criminal Conduct

• Crimes against persons:
  • homicide, kidnapping, sexual offences, assault.


• Crimes against property:
  • theft, robbery, burglary, trespass.


• Crimes against public health:
  • drug offences, abortion.


• Crimes against the government:
  • bribery, treason, sedition, public disorder, official misconduct.


• Crimes against the family:
  • bigamy, adultery, neglect of children, desertion.


• Crimes against morals:
  • incest, sodomy, homosexual activities.


• Crimes against religion:
  • blasphemy, gambling, prostitution.


• A sound criminal justice system should avoid:
  • over-criminalisation,
  • double criminalisation,
  • repeated criminalisation of the same conduct.

​KembaraXtra-Case Law-Al-Najar and others v Cumberland Hotel (London) Ltd [2021] 1 WLR 3415
​I. Case Information

• Citation: [2020] EWCA Civ 1716
• Court: Court of Appeal
• Judges: McCombe, Flaux, Newey LJJ
• Date of Judgment: 2020 Nov 5; Dec 18

II. Key Legal Question / Practice Point

• Appeal - Findings of trial judge:
  • Can an appellate court allow an appeal based on a re-cast content of duty when the trial judge found no breach of the originally contended duty of care?
  • Specifically, in a case where a hotel was found not in breach of its duty to protect guests from third-party criminal acts.

III. Factual Background

• Incident: Three claimants were attacked by a third party (S) who entered the defendant's hotel in the early hours.
• Third Party Action: S attempted to steal money, jewellery, and other items from one of the claimant's rooms.
• Claimants' Injuries: All claimants suffered physical or psychiatric injuries.
• Claimants' Initial Contention (Trial):
  • Defendant hotel proprietor was in breach of duty of care.
  • Breach due to failure to stop S entering the hotel, gaining access to guest areas, and carrying out the attack.
  • Specific alleged breach: Hotel's lobby officer should have greeted and, if necessary, challenged every person entering the hotel from 11 p.m. onwards.

IV. Trial Judge's Decision (Dingemans J)

• Duty of Care Established: Hotel proprietor owes guests a duty to take reasonable care to protect them against injury caused by the criminal acts of third parties during their stay.
• Breach of Duty Finding:
  • The defendant had taken reasonable care in all circumstances.
  • Therefore, the defendant was not in breach of duty.
  • Specifically rejected the claimants' contention regarding the lobby officer's duties after 11 p.m.

V. Claimants' Appeal

• Re-cast Duty Contention on Appeal:
  • After 11 p.m., the lobby officer should have greeted every person entering the hotel where possible, alternatively where reasonably practicable. (This is a softer, less absolute version of the original contention).

VI. Court of Appeal's Decision (Dismissing the Appeal)

• Nature of the Duty: The defendant's duty was to take reasonable care, not an absolute duty, to prevent criminal attacks.
• Trial Judge's Findings on Likelihood: The trial judge found the likelihood of such an attack to be extremely low.
• Justification for Rejecting Original Contention: Given the "reasonable care" standard and low likelihood, the judge was clearly entitled to reject the contention that the duty included challenging every person after 11 p.m.
• Assessment of Breach at Trial:
  • The trial judge assessed the alleged breach (regarding the lobby officer) by reference to the nature of the case being made at trial and the extent of the challenge to the lobby officer's evidence.
• Problem with Re-cast Duty on Appeal:
  • A consideration of the re-cast duty would have required a different approach to the evidence regarding the lobby officer's conduct, an approach the trial judge was not called upon to assess.
• Appellate Court's Role - Non-Interference with Findings of Fact:
  • Appellate courts have been repeatedly warned not to interfere with findings of fact by trial judges, unless compelled.
  • This applies to primary facts, evaluation of those facts, and inferences drawn from them.
• Conclusion: The trial judge's conclusion of no breach of the duty alleged (based on primary facts found) could not be faulted.

VII. Cited Authority

• Fage UK Ltd v Chobani UK Ltd [2014] ETMR 26, para 114, CA (Lewison LJ's dicta applied regarding appellate restraint on interfering with factual findings).

VIII. Outcome

• Decision of Dingemans J affirmed.
• Appeal dismissed.

KembaraXtra-Malaysian Criminal Law- Introduction- Concept of Crime

1. Concept of Crime

• Every person has an instinctive desire to protect:
  • life
  • body
  • mind
  • property
  • reputation


• Any violation of these interests, whether by act or omission, is considered unacceptable.
• People must be able to live peacefully and without fear of harm or injury.
• Protection of these interests is necessary in every society.

2. Role of Penal Law

• One effective way to guarantee safety is to:
  • identify unacceptable conduct, and
  • make such conduct known to members of society.
• This helps define the boundary between acceptable and unacceptable behaviour.
• When a person commits conduct declared unacceptable by law, a crime is said to have been committed.
• Sovereign States enact penal laws which:
  • define crimes (acts or omissions), and
  • prescribe appropriate punishments.
• Penal law:
  • prohibits harmful or undesired conduct, and
  • punishes offenders.
• Purpose of penal law:
  • protect the general public, and
  • maintain law and order.

3. Crime vs Immoral Conduct

• Crime and immoral conduct are often confused but are not identical.
• Moral conduct is subjective, depending on:
  • society,
  • culture,
  • time period, and
  • jurisdiction.
• What is moral in one society may be immoral in another.
• Moral standards may also change over time.
• Violation of moral principles may lead to social sanctions, not legal punishment.

4. Relationship Between Crime and Immorality

• Common factor:
  • both crime and immoral conduct are disfavoured by society.
• Some acts are both immoral and criminal:
  • theft
  • robbery
  • rape
  • murder
• Not all immoral conduct is criminal.
• Principle:
  • All crimes are immoral,
  • but not all immoral acts are crimes.

5. Immoral but Not Criminal Conduct

• Example: Passive euthanasia
  • Withdrawal of life support due to futility of treatment.
• Although morally controversial:
  • it is not a criminal offence under the Penal Code.
• Not an offence under:
  • section 299 (culpable homicide),
  • section 300 (murder), or
  • section 306 (abetment of suicide).
• Death results from illness, not suicide.

6. Penal Law Is Not a Moral Code

• A person is not punishable merely for immoral traits such as:
  • lack of compassion,
  • lack of empathy,
  • ingratitude,
  • greed, or
  • pride.
• The drafters of the Indian Penal Code clarified:
  • Penal law is not a body of ethics.
  • Legislature should not punish acts solely because they are immoral.
• Some morally worse acts are not punishable, while less immoral acts are criminalised.

7. Criminalisation of Morality

• Key questions arise:
  • Should all immoral conduct be criminalised?
  • Whose moral standards should be adopted?


• Difficult to answer in heterogeneous societies with diverse moral views.
• W. Friedman’s three key questions:
  • What conduct should be forbidden?
  • What form of social condemnation is appropriate?
  • What sanctions best prevent prohibited conduct?

8. Debate on Criminalising Immoral Conduct

• Criminalisation of immorality is highly controversial.
• Example: Decriminalisation of consensual homosexual conduct in the UK.
• Wolfenden Report (1957):
  • recommended decriminalisation of private consensual homosexual acts.
  • law should not regulate private morality.


• Argument:
  • no strong utilitarian justification for criminal sanctions.

9. Lord Devlin’s View

• Three key questions posed:
  1. Can society judge matters of morality?
  2. Can law be used to enforce morality?
  3. Should law enforce morality in all cases or only some?
• Answers:
  1. Yes to the first two questions.
• For the third:
  1. balance must exist between individual liberty and societal interest.
• Criminalisation justified only when:
  1. society collectively disapproves the conduct.
• Public opinion is crucial (e.g. suicide laws in Britain).

10. Mala in Se and Mala Prohibita

• Crimes classified into:
  • Mala in se:
    • acts evil in themselves
    • e.g. murder, rape, theft
  • Mala prohibita:
    • acts criminal only because prohibited by statute
    • e.g. regulatory offences
• Distinction is subjective and context-dependent.
• Though criticised as vague, it is widely used in case law and scholarship.

11. Alternative View of Criminal Law

• Criminal law should:
  • not regulate morals,
  • not punish sins.
• Categories of acts:
  • Criminal & immoral (e.g. theft)
  • Immoral but not criminal (e.g. ingratitude)
  • Criminal but not sinful (e.g. traffic offences)
• Penal law should focus on:
  • acts disturbing peace, stability, and security, and
  • acts harming life, body, mind, property, or reputation.

• Over-criminalisation threatens:
  • personal liberty,
  • public well-being, especially in victimless crimes.

12. Principle of Legality

• No act or omission amounts to a crime unless:
  • it is prohibited by penal law.
• Moral or immoral nature alone is irrelevant without legal prohibition.

KembaraXtra-Malaysian Criminal Law - Introduction -Subjective Nature of Crime

1. Subjective Nature of Crime

• Like moral conduct, crime is subjective.
• What constitutes a crime depends on:
  • the country, and
  • the period of time.


• An act or omission may be a crime in one jurisdiction but not in another.
• Differences arise due to:
  • religion
  • culture
  • social values
  • political ideology
  • economic orientation


• Even within the same country, states or regions may differ.
• What is criminal today may not have been criminal in the past or future.
• Russell:
  • criminal offences are creations of criminal policy adopted from time to time.


• Kenny:
  • crime results from the combined effect of various social forces.
  
  
  
  
  

2. Difficulty in Defining Crime

• Due to these variables, it is difficult to formulate a single, universal definition of crime.
• JW Cecil Turner:
  • defining crime is extremely difficult;
  • no satisfactory legal definition exists.
• Russell:
  • no writer has successfully defined crime satisfactorily.
• Glanville Williams:
  • a workable content-based definition of crime is almost impossible;
  • defining crime is a “thorny intellectual problem of law”.

3. Absence of a Universal Definition

• Many jurists have proposed definitions of crime.
• However:
  • no universally accepted definition exists.
• These definitions reflect different perspectives:
  • legal
  • moral
  • social
  • political

4. Classical Definitions of Crime

• Sir William Blackstone (first definition):
  • crime = act or omission violating public law.
  • criticised for being too wide (includes constitutional and administrative law).
• Blackstone (second definition):
  • violation of public rights and duties owed to the community.
• Sergeant Stephen:
  • crime = violation of a right with evil tendency towards society.
• Criticism:
  • crime is not primarily about infringement of rights (civil law concept),
  • but about commission of prohibited acts.

5. Sociological and Moral Approaches

• John Gillin:
  • crime = act actually or believed to be socially harmful;
  • defined by groups with power to enforce penalties.
  • focuses on harm to society rather than individuals.


• BA Wrotley:
  • crime = offence against law and morality;
  • equates crime with immorality.


• Criticism:
  • not all crimes are immoral, and
  • not all immoral acts are crimes.

6. State-Centred Definitions

• Keeton:
  • crime = undesirable act which the State finds convenient to punish;
  • punishment imposed by State, not private remedy by victim.
• Goodhart:
  • crime = any act punished by the State.
  • highlights State’s role in criminalisation.

7. Penal Policy and Social Control

• WA Bonger:
  • crime = serious anti-social act;
  • State responds by punishment or correction.
• Russell:
  • crime = result of conduct the penal policy of the State seeks to prevent.
• Jerome Michael & Mortimer J. Adler:
  • crime = behaviour prohibited by the criminal code.
• Halsbury’s Laws of England:
  • crime = unlawful act or omission against the public,
  • punishable by law.

8. Evaluation of Definitions

• Numerous definitions exist, but:
  • none are precise or absolute.
• Crime remains:
  • relative,
  • subjective, and
  • policy-driven.
• Nonetheless, these definitions:
  • help identify general characteristics of crime, and
  • aid academic study of criminal law

9. Elements-Based Approach to Crime

• Some commentators prefer describing crime through its essential elements.
• Lord Coke’s maxim:
  • actus non facit reum nisi mens sit rea
  • an act does not make a person guilty unless the mind is also guilty.
• Meaning:
  • both actus reus (guilty act/omission), and
  • mens rea (guilty mind)
    are generally required for criminal liability.

10. Importance of Actus Reus and Mens Rea

• Crime usually requires:
  • a voluntary human act or omission, and
  • a blameworthy state of mind.

• Without these elements:
  • conduct is generally not punishable as a crime.

M

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Execution of Documents Required by Law to Be Attested [Section 67]

1. Introduction
​Certain documents acquire legal validity only when they are attested in the manner prescribed by law. Because of their special nature, the Bharatiya Sakshya Adhiniyam, 2023 lays down strict rules regarding the proof of execution of such documents. Section 67 embodies this principle by mandating examination of attesting witnesses, subject to limited and well-defined exceptions.

2. Statutory Provision
Section 67 provides that:

• Where a document is required by law to be attested,
• It cannot be used as evidence unless at least one attesting witness is called to prove its execution,
• Provided that the attesting witness is:
  • Alive,
  • Subject to the process of the Court, and
  • Capable of giving evidence.

Proviso:
It shall not be necessary to call an attesting witness for proving the execution of a registered document (other than a Will), unless its execution by the executant is specifically denied.

3. Scope and ApplicabilitySection 67 applies only to documents which the law requires to be attested. Common examples include:

• Mortgages under Section 59 of the Transfer of Property Act, 1882;
• Gifts under Section 123 of the Transfer of Property Act, 1882;
• Wills under the Indian Succession Act, 1925.

In such cases, proof of execution ordinarily demands oral testimony of an attesting witness.

4. Rule Requiring Examination of Attesting WitnessThe general rule under Section 67 is mandatory:

• At least one attesting witness must be examined to prove:
  • Execution by the executant, and
  • Attestation as required by law.

Failure to comply renders the document inadmissible as evidence, unless an exception applies.

5. Exceptions to the General RuleThe requirement of examining an attesting witness is relaxed in the following situations:

1. Non-availability of attesting witnesses
   • Where no attesting witness is alive, available, or capable of giving evidence (Sections 68–70 apply).
2. Registered documents (other than Wills)
   • If the document is registered and
   • Its execution is not specifically denied by the person who purports to have executed it.

⚠️ Important:
This relaxation does not apply to Wills, even if they are registered.

6. Meaning of “Attesting Witness”An attesting witness is a person who:

• Has seen the executant sign or affix his mark to the document, and
• Has signed the document as a witness with the intention of attesting it.

A scribe, though not an attesting witness, may prove execution if he witnessed the signing by the executant.

7. Effect of Non-Denial of ExecutionIf execution is not specifically denied, especially in the case of a registered document:

• Formal proof by examining attesting witnesses is unnecessary;
• Certified copies issued under the Registration Act, supported by statutory presumptions, are sufficient.

In Govind Bhai Chhota Bhai Patel v. Patel Raman Bhai Mathur Bhai, the Court held that:
Where execution of a registered gift deed is not specifically denied, examination of an attesting witness is not mandatory.

8. Proof of a Will – A Special RuleA Will stands on a different footing:

• It must always be proved strictly in accordance with:
  • Section 63 of the Indian Succession Act, and
  • Section 67 of the BSA.

In M.B. Ramesh v. K.M. Veeraje, the Supreme Court reaffirmed that:

• At least one attesting witness must be examined to prove a Will, if available.
• Registration of a Will does not dispense with this requirement.

9. Relationship with Other Provisions

• Section 67: Mandatory rule for proof by attesting witness
• Section 68: Applies where no attesting witness can be found
• Section 69: Admission of execution by executant
• Section 70: Attesting witness denies or forgets execution

Section 70 acts as a safeguard, allowing proof by other evidence when attesting witnesses fail to support execution despite being examined.

10. Meaning of “Specifically Denied”The phrase “specifically denied” means:

• A clear and express denial of execution by the executant or the party against whom the document is relied upon.
• A vague or evasive denial is insufficient.

If execution is asserted and not challenged on material particulars, the Court may presume due execution.

11. Conclusion
Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 ensures the authenticity and reliability of legally attested documents by insisting on strict proof through attesting witnesses. At the same time, it introduces measured flexibility for registered documents and non-availability of witnesses, while maintaining special rigour for Wills. The provision thus balances procedural discipline with practical justice.