Q. Discuss and Distinguish between Common Intention and Common Object?
1. INTRODUCTION.
It is a general rule that a person is liable for what he himself does and not for what other persons do. But Pakistan Penal Code 1860 provide situation where a person is held liable for the consequence of an act of another, even though he has not it himself. This is called the doctrine of constructive liability. Section 34 and Section 149 tells us about common intention and common object. Section 149 of Pakistan Penal Code 1860, does not create a new offence but deals with the criminal committed in the prosecution of common object.(2014 P. Cr. LJ ). The rule of common intention is described in section 34 and the rule of common object is described in section 149. Omission to mention Section 34 of Pakistan Penal Code 1860, with main offence does not affect the case, if no prejudice is caused to the accused. (2008 P. Cr. LJ. 1964). Some time common intention is developed at the spur of the moment or during commission of offence.(PLD 2007 S.C 87).
2. RELEVANT PROVISION.
Section 34 and 149 of Pakistan Penal Code 1860.
3. COMMON INTENTION.
(I). Meaning.
“Common Intention means pre-arranged plan, concert where persons joined together to achieve common purpose”.
(II). Definition of Common Intention Under Section 34 of Pakistan Penal Code 1860.
“When a criminal Act is done by several persons, in furtherance of the common intention of all each of such person is liable for that act in the same manner as if it were done by him alone”.
(III). Example.
‘A’, ‘B’, ‘C’, & ‘D’ kick and hit ‘Z’ together and finally ‘A’ shoots ‘Z’. All four would be liable for murder according to Section 34 of Pakistan Penal Code 1860.
Case Law.
Abdul Jabbar Vs. State, 1964.
(i). Facts.
Abdul Jabbar & Mithu intended to commit robbery in victim’shouse. Abdul Jabbar held off the victim’s family while Mithu demanded the keys of the safe. On resistance of the victim, Mithu stabbed him, victim died on the way. Police caught both of the offenders red handed.
(a). Decision of The Session Court.
Mithu convicted for murder Under Section 302 Abdul Jabbar convicted only for attempt robbery.
State appealed against the decision of the Session Court in the High Court.
(b). Decision of The High Court.
Abdul Jabbar held liable for murder Under Section 302 and robbery. Decision was based on Section 34 i-e- Principal of Common Intention.
Abdul Jabbar appealed against the decision of the High Court in the Supreme Court.
(c). Decision of The Supreme Court.
Supreme court up held the decision of the High Court. Thus Abdul Jabbar was charged with murder on the basis of common intention Under Section 34 of Pakistan Penal Code 1860.
4. INGREDIENTS OF THE SECTION 34 OF PAKISTAN PENAL CODE 1860.
Following are the ingredients of section 34 of Pakistan Penal Code 1860.
(I). Criminal Act.
To constitute an act liable to the principal of common intention it has to be a criminal act. Criminal act is an act forbidden by law or considered illegal.
(II). Several Persons.
Common Intention can only exist when there are 2 or more than 2 persons. To fall into the boundaries of this section act has to be committed by two or more than two persons. There cannot be joint liability in case of single accused.
Case Law.
2014 P. Cr. LJ. 594.
When an act is done by several person, in furtherance of common intention, each of such person is liable for that act which is done by him.
(III). Act Done In Pursuance of Pre-Arranged Plan.
Persons can be held liable under this section only if act is done in pursuance of pre-arranged plan. Joint liability cannot be determined where no mutual pre-arranged was present.
Case Law.
PLD 2010 S.C 47.
Several persons can simultaneously attack a man and may have the same intention namely the intention to kill and each can individually inflict a separate fatal below and yet none would have the commission intention as there is no prior meeting of mind to from a pre-arranged plan.
(IV). In Furtherance of Common Intention.
Necessary conditions for the applications of Section 34 of the code are common intention to commit an offence and participation by all the accused in doing the act or acts in furtherance of that common intention.
(V). Common Intention May Develop in Course of Events.
Common Intention may also develop in the course of events. Common Intention to bring about a particular result can be developed at the spot. The common intention of the accused can undergo a change in the course of the commission of an offence. They may go to commit a minor offence but subsequently in the course of the commission of the offence, they may change their mind and from an intention to commit a major offence. In that case they would be held guilty of the commission of the major offence. (1981 SCMR 308).
(VI). To Constitute Common Intention.
To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them.
(VII). In Order To Attract Section 34 of Pakistan Penal Code 1860.
In order to attract Section 34 of Pakistan Penal Code 1860 it is not sufficient to prove that an offence is a likely consequence of common intention; the pro-section must show that the offence committed was covered by the common intention.
(VIII). Section 34 of Pakistan Penal Code 1860, Is Intended To Meat Cases.
Section 34 of Pakistan Penal Code 1860, is intended to meat cases in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all.
(IX). The Reason When All Are Guilty in Such Case.
The reason when all are guilty in such cases in that the presence of accomplish gives encouragement, support and protection to the person actually committing an act. All are guilty of the principal offence and not of abetment.
Case Law.
PLD 2012 Sindh 272.
Common intention is an intention to commit crime actually committed and each accused person can be convicted, only if he has participated in that common intention.
5. SCOPE OF SECTION 34 OF PAKISTAN PENAL CODE 1860.
This section is intended to meet the cases in which it may be difficult to distinguish the acts of individual members of a party or to prove exactly what part was taken by each of them in furtherance of common intention of all. This section neither creates an offence nor amounts to an offence by its force, but it merely lays down the principle of joint liability.
6. PROOF OF COMMON INTENTION.
It is sometimes proved by direct evidence, such as confessions or an approver’s testimony, but in most cases its determination depends upon inference from acts done and motive possessed, judged in the lights of the principle of joint liability.
7. COMMON OBJECT.
(I). Meaning.
“Mutual goal or purpose which brings two or more persons together”.
(II). Definition of Common Object Under Section 149 of Pakistan Penal Code 1860.
“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 committing of that offence is member of the same assembly is guilty of that offence”.
8. INGREDIENTS OF SECTION 149 OF PAKISTAN PENAL CODE 1860.
(I). Unlawful Assembly Under Section 141 of Pakistan Penal Code 1860.
According to this section an unlawful assembly means the gathering of 5 or more persons for a common object especially to resist the execution of law or to commit mischief or criminal trespass or to obtain possession of property or to deprive someone of his right.
(II). Membership.
Membership of the unlawful assembly is mandatory. Common object cannot be proved until and unless the person (Accused) was member of an unlawful assembly. Membership is also important for constructing liability.
Case Law.
2012 SCMR 1156.
It was not necessary that there should be a prior concert in the sense of a meeting of the moment, and it was enough if it was adopted by all the members and was shared by all of them.
Case Law.
2014 P. Cr. LJ. 571.
Under this Section every member of unlawful assembly in the described circumstances is vicariously liable for an offence committed by another member of assembly.
(III). In Prosecution of Common Object.
In prosecution means in fulfillment of the offence committed by unlawful assembly should be in furtherance of common object.
Case Law. 1995 P. Cr. L. J . 2066 (SC AJ & K).
Held.
For the application of section 149 of Pakistan Penal Code 1860 it is necessary that accused should be a member of an unlawful assembly, offence should be committed by him in prosecution of common object of that assembly and offence should be of such a nature that the members of the unlawful assembly knew the same to be likely to be committed in prosecution of their common object.
(IV). Knowledge of Likelihood of The Offence Being Committed.
This section also covers those cases which are likely to occur as a result of common object.
(V). Determination of Common Object.
In order to determine the common object of an assembly circumstance of the case, attitude and deportment of the person assembled very often furnish key to their mental bent.
9. SCOPE OF SECTION 149 OF PAKISTAN PENAL CODE 1860.
The offence should be of such a nature that the member of the unlawful assembly knew that the same to be likely to be committed in prosecution of their common object.
10. COMPROMISE.
Main accused compounding, member of the unlawful assembly also entitled to the concession. (PLD 2003 Kar 127).
11. ONUS TO PROVE.
It is the duty of prosecution to prove the participation of each and every accused in the commission of the offence. (PLD S.C. 544).
12. DISTINCTION BETWEEN COMMON INTENTION AND COMMON OBJECT .
(i). Meaning.
(Common Intention).
“Common Intention means pre-arranged plan, concert where persons joined together to achieve common purpose”.
(Common Object).
“Mutual goal or purpose which brings two or more persons together”.
(ii). Relevant Provision.
(Common Intention).
Common Intention is defined under Section 34 of Pakistan Penal Code
1860.
(Common Object).
Common Object has been defined under Section 149 of Pakistan Penal Code 1860.
(iii). Number of Accused.
(Common Intention).
In common intention, the number of accused is more than one.
(Common Object).
In common object, the number of accused is five or more.
(iv). Participation.
(Common Intention).
The actual participation in action is the important condition of common intention.
(Common Object).
Membership of unlawful assembly is the leading feature of common object.
(v). Meeting of Mind.
(Common Intention).
Section 34 of Pakistan Penal Code 1860 requires a pre-concert or meeting of mind.
(Common Object).
Section 149 of Pakistan Penal Code 1860 will apply even if there was no prior meeting of mind.
(vi). As To Offence.
(Common Intention).
Section 34 expounds a doctrine of criminal liability and does not create a distinct offence.
(Common Object).
Section 149 creates a distinctive offence and deals with that offence alone.
(vii). Presence of Accused.
(Common Intention).
In common intention, all the accused must be present on the spot.
(Common Object).
In common object, it is not necessary that all the accused must be present at the time of commission of crime.
(viii). As To Application.
(Common Intention).
Section 34 applies, where criminal act is done by two or more persons with common intention.
(Common Object).
Section 149 applies where there is unlawful assembly of five or more persons with some common object.
(ix). As To Type.
(Common Intention).
Common Intention may be of any type.
(Common Object).
The common object must be one of the objects mentioned in Section 141, which defines the term unlawful assembly.
12. CONCLUSION.
The pith and marrow of the previous discussion there is no iota untruth shows that both sections are different with each other. The section 34 and 149 embody the doctrine of constructive liability. The important condition for the operation of either section is that the intention in one case and object in the other should be common and if an act is in excess of or beyond the intention or object of the members they cannot be held constructively liable for it.
0 comments:
Post a Comment