SHORT TERMS/DEFINITION 26.

Judgment Debtor
1. Attachment 27. Judgment Pleading
2. Bail 28. Legal Representative
3. Cause of Action 29. Local Inspection
4. Charge 30. Mesne Profit
5. Cheating 31. Necessary and Proper Party
6. Cognizable Offence 32. Non- Cognizable Offence
7. Complaint 33. Offence
8. Confession 34. Pleader
9. Court 35. Police Report
10. Decree 36. Preliminary Decree
11. Decree Holder 37. Public Officer
12. Diyat 38. Public Prosecutor
13. Diyat 39. Qisas
14. Dying Declaration 40. Rejection of Plaint
15. English Mortgage 41. Remand
16. Extortion 42. Res judicata
17. Gift 43. Return of Plaint
18. Good Faith 44. Rioting
19. Hiba 45. Section 12(2)
20. Hurt 46. Set off
21. Injury 47. Tazir
22. Inquiry 48. Will
23. Investigation 49. Wrongful Gain
24. Issues 50. Wrongful Loss
25. Judge

SET-OFF
A form of defence in which the defendant while acknowledging the merit of the plaintiffs claim
also sets up a demand of his own to counter balance it either wholly or in part. The particulars of
set-off should be presented in court at the policy of the law is to settle all disputes at one time.
The following conditions must be satisfied before the defendants claim of set-off is entertained by
the court:
1. The suit must be for recovery of money.
2. The cross claim must be an ascertained sum of money.
3. The sum must be such as could legally be recovered by defendant from plaintiff.
4. The claim should not exceed the pecuniary limit of the jurisdiction of court.
5. Both in respect of the Plaintiffs claim and the defendants claim the parties should
Fill the same character.
Note Reference: Order 8 rules 6, 7, 8 and 9 of the Code.
RES JUDICATA
A matter already decided and adjudicated upon by the court cannot be re-opened under res judicata.
No court shall try any suit between the same parties or between parties under they or any of them
claim litigation under the same tittle in a court competent to try such subsequent suit or the suit in
which issue has been subsequently raised and has been heard and nally decided by such court. A
plea of res judicata is otherwise called plea of judgment. The proposition of res judicata is given
under Section 11 of the Civil Procedure Code.
 DIYAT
Means the compensation specified in section 323 PPC payable to the heirs of the victim. U/s 323
PPC the value of diyat has been given, whereby the court is required subject to the injunction of
lsalm as laid down in Holy Quran and Sunnah and keeping in view the financial position of the
convict and the heirs of the victim, fix the value of diyat, which shall not be less than the value of
thirty thousand six hundred and thirty (30630) grams of silver.

CONFESSION
The word confession as used in the Order of Qanoon-e-Shahadat, cannot be construed as
including a mere inculpatory admission which falls in an admission of guilt. The confession of
accused is defined under Section 164 of the Code of Criminal Procedure. A full procedure of
recording confession by the accused before the Magistrate with reference to section 164 Cr.P.C. has
been propounded in a case law reported in 1984 P.Cr.L.J. 611 (Kar) as follows: As soon as accused
is produced before court of Magistrate his hand cuffs should be removed and Police should be
turned out from court. Accused be informed that he is before Magistrate and whether he makes any
statement or nothe would not be given back to police who produced him but he be remanded to
judicial lock up. He should then be given sufcient time to ponder over the matter thereafter he
should be wanted that he is not bound to make any statement, but if he did so, it should be used as
evidence against him. The following questions then are put to him:

1. For how long have you been with police?

2. Has any pressure been brought to bear upon you to make confession?
3. Have you been threatened to confess?
4. Has any inducement been given to you?
5. Why are you making?
After recording the accused answer, if the Magistrate is satised that accused is making confession
voluntarily he would then put such questions as are given in the printed form and then should
proceed to record his confession in verbatim.

ENGLISH MORTGAGE
English Mortgage is defined under Section 58(e) of the Transfer of Property Act, in this expression
that where the mortgager binds himself to repay the mortgage money on a certain date and transfers
the mortgaged property absolutely to the mortgagee, but subject to proviso that he will re-transfer it
to the mortgagor upon payment of the mortgage money as agreed, the transaction is called in
English Mortgage.

INVESTIGATION
The terminology of "investigation" as propounded under definition clause "L" of Section 4 of the
Criminal Procedure Code, includes all the proceedings under Cr.P.C. for the collection of evidence
conducted by a Police officer or by any person (other than a Magistrate) who is authorized by a
Magistrate in this behalf. The word investigation used in Article 153 of the Quanoon-e-Shahadat
Order is not to be understood in the narrow sense in which the word is used in the Criminal
Procedure Code. In the legal sense investigation means ascertainment of facts, sifting of materials,
search of relevant date, discovery and collection of facts concerning a certain matter of matters. In
the context of Section 162 Cr.P.C. this term must refer to the investigation of the specific allegation
of crime already reported there for. Section 162 can apply only to those statements which are steps
in furtherance of the pending investigation.
[For further study reference is made for the case law reported in FLD 1956 SC (Pak) 238]

OFFENCE
The word "offence" as specified under Sections 4(1) (o) of the Criminal Procedure Code, followed
by Section 5 of the Code, means any act or omission made punishable by any law for the time being
in force. All the offences under the Pakistan Penal Code shall be investigated, enquired into, tried
and otherwise dealt with according to the provisions contained in the Criminal Procedure Code.
The purport of "offence" within legal meaning is crime-an act of wickedness. An act committed
against a law. Hence "offence" means any act or omission made punishable by the law for the time
being in force. An offence has the same idea as crime. Offence denotes a thing punishable under the
Penal Code or under any special or local law.

NON-COGNIZABLE OFFENCE
Means an offence for, in which a Police officer may not arrest without warrant. The list of those
non-cog offences is provided in the second schedule of the Criminal Procedure Code. The non-
cognizable offences may be in other laws or enactments, which too, are barred from arresting
without warrant by the Police officer.

COURT
The Black's Law Dictionary defines the "Court" as an organ of the government belonging to the
judicial department, whose function is the application of the laws to controversies brought before. It
and public administration of justice. It must be an essential characteristic of court that it should have
power to determine questions in disputes between the litigants upon the merits. To be a court the
person or persons who constitute it must be entrusted with judicial functions; that is, functions of
deciding litigated questions according to law. They must derive their powers from the State and
exercise the judicial powers of the State.

SECTION 12(2) CPC

Section 12(2) is a subsequent legislation as the same was added by Ordinance X of 1980 in the Civil
Procedure Code. The main object of this section is that where a person challenges a validity of a
judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, that
person has been made to seek his remedy by making an application to the court which passed the
judgment, decree or order. Under this new enactment a separate suit is barred. Before Ordinance
X of 1980, any decree, judgment or order, if obtained on fraud, mis-representation or want of
jurisdiction was to be challenged by a separate suit. In that there had been number of the suits being
off-shots to that main suit. There was unnecessarily bulkiness of the pending board of the court
particularly for one matter in series of litigation. When there had been found four or five claimants
affected by that judgment, decree or order, jointly or severally, all of them were to bring fresh suit.
In order to curb the number of suits in the protracted litigation, Section 12(2) was enacted by the
legislature, which interalia provides for filing of application in the same suit.

GIFT
Gift is the transfer of certain existing movable or immovable property made voluntarily and without
consideration by one person called the donor to another called the donee and accepted by or on
behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he
still capable of giving. If the donee dies before the acceptance, the gift is void. The transfer of
property in lieu of gift is prescribed under Transfer of Property Act, whereby the transfer of gifted
property is to be effected by a registered instrument signed by or on behalf of the donor and
attested by at least two witnesses. For the purpose of making a gift of moveable property the
transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
[Reference is made from Sections 722 and 123 of the Transfer of Property Act]

WILL
Will means the legal disposition of the property, which takes effect after the death of testator. It
presents different situation in different laws. It may be wholly void or partly void, depending on the
law, which govern the testator. if he is governed by Hindu law, then the "will" will be governed by
Mitakshara Law or Dayabhaga law as the case may be. If he is a Muslim, it will be seen which school
of thought he follows; whether Hanfi law or Shia law. Christians and Parses have their own laws,
which govern the "wills" made by them. If the will is valid according to the law, which governs the
testator, then it has to take effect only after certain liabilities _of the testator or met from his estate.
For example, his funeral expenses and debt. "Will" becomes operative only on the death of the
testator. If the "will" is not revoked and it is otherwise valid, then immediately after the death of
testator it takes effect and the property willed away vests in the legatee irrespective of the fact
whether he accepts the bequest or not.
[Reference is made from Chapter II of Succession Act, 1925. Section 6, Hindu wills Act of 1870,
Section 3, Probation and Administration Act V of 1881]

HIBA
Hiba is a gift made under the Muslim law. Section 129 of the Transfer of Property Act provides that
gift made under Muslim law, are excluded from the operation of the Act. It is firmly established
proposition that under Muslim law a valid gift could be effected orally if the formalities prescribed
by Muslim law are complied with even if the instrument of gift is not registered. The formalities of
the Hiba are:
(i) Declaration of property by Donor.
(ii) Acceptance by the Donee.
(iii) Passing of the possession from the Donor.
Where these formalities are amply satisfied, registration held not necessary.

PLEADER
The term Pleader is defined under Section 4(1) (r) of the Criminal procedure Code, which means a
Pleader or a mukhtar authorized under any law for the time being in force to practice in such court
and includes (i) an advocate, a vakil and an attorney of a High Court so authorised and (ii) any other
person appointed with the permission of court to act in such proceedings. Pleader in legal sense
means one who draws pleadings for another. A pieader within meaning of Section 4(1) (r) of Cr.P.C
includes any other person authorised by the convict who is unable to appear himself in the appellate
court to argue the appeal on his behalf if the convict is unable to engage the licensed pleader.
[Reference PLD 1952 AJ&K 24]

PRELIMINARY DECREE
According to the explanation to Section 2 (2) a decree is preliminary when further proceedings have
to be taken in the suit and the suit has not been completely disposed of. A preliminary decree
declares the rights and obligations of the parties; leaving further matter to be determined in
subsequent proceedings. In a preliminary decree the court adjudicates upon the rights of the parties,
and before passing of the final decree takes steps to enable complete disposal of the suit, the latter
does not. Any alteration in the rights of parties after the preliminary decree must be noticed and
given effect to in the final decree.
 JUDGE
In large sense Judge means presiding officer of a civil court. The word denotes not every person
who is officially designated as a judge, but also every person who is empowered by law to give in
any legal proceeding, civil or criminal, a definitive judgment or a judgment which if not appealed
against would be definitive, or a judgment which, if not confirmed by some other authority, would
be definitive; or who is one of body of person (l) empowered by law to give such a judgment. The
definition of judge is clearly propounded in Section 19 of the Pakistan Penal Code.

RIOTING
Is defined under Section 146 of the Pakistan Penal Code. Rioting means an unlawful assembly in a
particular state or activity. To constitute the offence of rioting it must be proved.
1. That the accused being five or more in number formed an unlawful assembly,
2. That they were animated by a common unlawful object,
3. That force or violence was used by the unlawful assembly, and
4. That such force was used in prosecution of the common object. If the common object of an
assembly is not illegal, it is not rioting; even force is used by a number of it. If persons
lawfully assembled for any purpose suddenly quarrels they do not commit riot. Rioting with
deadly weapons is an aggravated form of rioting.

CHEATING
Cheating with reference to Section 415 PPC provides deceitfully practices in defrauding or
attempting to defraud another of his known right, by means of some artful advice, contrary to the
plain rules of common honestly; as by playing with false dice, by causing an illiterate person to
execute a deed to his prejudice or reading it over to him in words different from those in which it is
written; selling one commodity for another or using false weights and measures and the like. The
cheating at common law is that when a person in the course of his trade or business openly and
publicly carried on, put a false mark or token upon an article so as to pass it off as genuine one
when in fact it is only a bogus one; and the article is sold and money obtained by means of that false
mark or token.
WRONGFUL GAIN AND WRONGFUL LOSS
Wrongful gain means gain by unlawful means of property to which the person gaining is not
legally entitled. Wrongful loss" means the loss by unlawful means of property to which the person
losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully
as well as when such person acquires wrongfully. A person is said to loss wrongfully when such
person is wrongfully kept out of any property as well as when person is wrongfully deprived of
property. The terminology of wrongful gain and wrongful loss is provided under Section 23 and 425
PPC. [See further details in the case law reported in PLD 1961 Azad J&K 73]
EXTORTION
Extortion is defined under Section 383 PPC. As pert language of section a person commits
extortion it he
1) intentionally puts any person in fear of any injury;
2) dishonestly induces the person so put in tear;
3) to deliver to any person any property or valuable security or any thing signed or sealed which may
be converted into a valuable security. The inducement to part with the property should be dishonest
i.e. with intent to cause wrongful gain or loss. The fear in extortion must be such as to unsettle the
mind of the person by which he voluntarily consents on that action. The terror of a criminal charge
or loss of an appointment amounts to fear of injury. Fear must be preceding the delivery of
property. Wrongful retention of property obtained without threat will not amount extortion even
though subsequent threats are used to retain it.
 CHARGE
Charge is defined under Section 221 of the Criminal Procedure Code. Every charge under the Penal
Code shall state the offence with which the accused is charged. A word is wider in its purport and
includes besides the element of offence, the reference to the person who is alleged to have
committed it. The main and necessary particulars of the charge are;
(i) A criminal accusation against a person;
(ii) The address of a judge instructing upon the law relating to the matters before him in the case;
(iii) A burden of claim.
The word charge implies that the allegation or accusation of an offence against another should be
made to a person, which is competent to take action against the person complained of. In other
words, the test is whether the person making the charge intended to set the criminal law in motion
against the person charged of. The ordinary meaning given to the term Charge in Whartons Law
Lexicon is to prefer an accusation against one".
[Reference of case Law AIR 1953 Madras 507 for further guide ness]

INVESTIGATION
The terminology of investigation as propounded under definition clause L of Section 4 of the
Criminal Procedure Code, includes all the proceedings under Cr.P.C. for the collection of evidence
conducted by a Police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf. The word investigation used in article 153 of the Quanoon-e-Shahadat
Order is not to be understood in the narrow sense in which the word is used in the Criminal
Procedure Code. in the legal sense investigation means ascertainment 10 facts, sifting on materials,
search of relevant data, discovery and collection to facts concerning a certain matter of matters. In
the context of Section 162 Cr.P.C. this term must refer to the investigation of the