Q. What is Abetment? What are its different kinds? What punishment has been provided for it?
1. INTRODUCTION.
Abetment is an act of encouraging, inciting or aiding another. Abetment is a separate and distinct offence provided the thing abetted is an offence. Abetment does not itself involve the actual commission of crime, it is a crime apart. Abetment is instigation to a person to do an act in certain way or aid some other person in doing an act which is an offence.
2. RELEVANT PROVISION.
Section 107 to 120 of Pakistan Penal Code deal the term Abetment.
3. PRINCIPLE OF CONSTRUCTIVE LIABILITY.
Before we define abetment it
Would be important to mention the principle of constructive liability which is also known as rule of joint liability according to which if two or more persons commit an offence jointly in furtherance of common intention; each one of them would be held liable for it as if he had done it individually. Liability for abetment is determined under this principle i.e. the punishment of abetment is determined keeping this principle in view since in abetment the Mens Rea of one person has translated in the Actus Reus of another.
4. MEANING OF ABETMENT.
“Abetment is to encourage, support or aid the commission of an act which is usually of illegal nature.”
5. DEFINITION OF ABETMENT.
CASE LAW.
Muthammal Vs Maruthathal 1981.
“Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence.”
6. ABETMENT UNDER SECTION 107.
A person abets the doing of a thing, who
First; Instigates any person to do that thing.
Secondly; Engage with one or more other person or persons in conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing or;
Thirdly; Intentionally aids, by an act or illegal omission, the doing of that thing.
7. ESSENTIALS OF ABETMENT.
Following are the essentials of abetment.
(i). There must be an abettor.
(ii). He must abet.
(iii). The abetment must be an offence.
8. KINDS OF ABETMENT.
There are three kinds of abetment.
(I). ABETMENT BY INSTIGATION.
(i). Meaning of Instigation.
“The word instigates means to goad or urge forward to provoke, incite, urge or encouragement to do an act.”
(ii). Definition of Instigation.
Explanation 1 of Section 107 of Pakistan Penal Code defines the term instigation thus.
“A person who by willfully misrepresentation or by willful concealment of an material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procures a thing to be done, is said to instigate the doing of that thing.”
(iii). Illustration.
‘A’, a public officer, is authorized by a warrant from a Court of Justice to apprehend ‘Z’,’B’ knowing that fact and also ‘C’ is not ‘Z’, willfully represent to ‘A’ that ‘C’ is ‘Z’, and thereby intentionally cause ‘A’ to apprehend ‘C’. Here ‘B’ abets by instigation the apprehension of ‘C’.
(II). ABETMENT BY CONSPIRACY.
(i). Meaning of Conspiracy.
“Conspiracy means a combination between two or more persons formed for the purpose of committing some unlawful or criminal act, or lawful act by illegal means.”
(ii). Definition of Conspiracy.
“An agreement between two or more persons to do an illegal act or to do a legal act by illegal means is called criminal conspiracy.”
CASE LAW.
1998 P.Cr.L.J 1484.
It was held that to constitute criminal conspiracy there must be agreement of two or more persons to do an act which is illegal or which is to be done by illegal means.
(iii). Conspiracy Amounts to Abetment.
Conspiracy can only amount to abetment if an act or illegal omission takes place in pursuance of the conspiracy.
(iv). Concert with Person Abetted not Necessary.
It is not necessary that the abettor should concert the offence with person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
(III). ABETMENT BY INTENTIONAL AID.
(i). Definition of Abetment by Intentional Aid.
According to Explanation 2 of Section 107 of Pakistan Penal Code, “Whoever, prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that thing.”
Case Law.
2015 P. Cr. L.J. 1.
Any kind of act of a person, intended to facilitate another to commit and offence would fall within the third category of the definition of abetment.
(ii). Intentional Aid by Act.
If a person joins another in the commission of a crime by which he is to benefit and which it would not be possible to commit but for his aid, he is guilty of the commission of the crime.
(iii). Intentional Aids by Illegal Omission.
To prove abetment by ‘Illegal Omission’ it is necessary to show that the accused intentionally aided the commission of the offence by his non-interference. The prosecution must be able to establish that such illegal omission was likely to have lent support to or to have encouraged the principal offender to commit the offence in question.
(iv). Illustration.
A Village Magistrate who was present while certain Police Constable were wrongfully beating the person and who not stop the criminal act being committed in his presence he abetted within the meaning of this section.
9. SATISFACTION OF THE COURT.
Court can be satisfied of the information supplied by the applicant. (1969 P. Cr. L.J. 585).
10. ABETTOR UNDER SECTION 108.
(i). Meaning of Abettor.
“Abettor is a person who instigates, promotes or procures commission of crime.”
(ii). Definition of Abettor Under Section 108.
“A person abets an offence who abets either the commission of an offence or the commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention, or knowledge as that of the abettor.”
(iii). Abettor May Be Innocent As Principal.
According to explanation 1 of Section 108, a person can be held guilty as abettor, though as a principal he would be innocent e.g. the abetment of the illegal omission of an act to a public servant by private person.
(iv). Act Abetted Need Not To Be Committed.
According to explanation 2 of Section 108, to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.
(a). Illustration.
‘A’ instigates ‘B’ to murder ‘C’. ‘B’ refuses to do so ‘A’ is guilty abetting ‘B’ to commit murder.
(v). Capacity of Person Abetted.
According to explanation 3 of Section 108, the person abetted need not have any guilty intention in committing the act, nor should he be necessarily capable by law of committing an offence, thus a child or a lunatic who are supposed by law incapable to commit an offence may be abetted by another person who is capable by law to commit an offence with guilty intention and the abettor is guilty. Whether the act is actually committed or not.
(vi). Abetment of An Abetment.
According to explanation 4 of Section 108, when the abetment of an offence is an offence, the abetment of such abetment is also an offence.
(a). Illustration.
‘A’ instigates ‘B’ to instigate ‘C’ to murder ‘Z’. ‘B’ accordingly instigates ‘C’ to murder ‘Z’. All are liable ‘C’ is for murder. ‘B’ for abetting murder and ‘A’ for abetting the abetment of murder.
11. ABETMENT IN PAKISTAN OF OFFENCE OUTSIDE IT UNDER SECTION 108-A OF PAKISTAN PENAL CODE 1860.
A person abets an offence within the meaning of this Code who, in Pakistan abets the commission of any act without and beyond Pakistan which would constitute an offence committed in Pakistan.
(I). Illustration.
‘A’, in Pakistan, instigates ‘B’, a foreigner in Goa, to commit a murder in Goa, ‘A’ is guilty of abetting murder.
(II). Scope of Section 108-A of Pakistan Penal Code 1860.
This section contemplates that the abetment committed outside Pakistan shall be counted as committed in Pakistan. If the act committed in Pakistan amounts to preparation only, it will not be punishable.
(III). Application of Section 108-A of Pakistan Penal Code 1860.
This section applies only to offences under the Pakistan Penal Code 1860 and not to offence under other statutes.
12. CHARGE OF ABETMENT.
It is open to the prosecution to bring a charge of abetment generally. The charge will amount to notice to the accused that they have to meet a case of abetment in one or more of the different ways indicated in Section 107 of Pakistan Penal Code.
13. PROOF OF ABETMENT.
In order to convict a person of abetting the commission of a crime. It is not only necessary to prove that he has taken part in those steps of the transaction, which are innocent, but in some way or other it is absolutely necessary to connect him which those steps of the transaction which are criminal.
14. PUNISHMENTS OF ABETMENT.
(I). PUNISHMENT OF ABETMENT IF THE ACT ABETTED COMMITTED IN CONSEQUENCE AND WHERE NO EXPRESS PROVISION IS MADE FOR ITS PUNISHMENT UNDER SECTION 109 OF PAKISTAN PENAL CODE 1860.
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Provided that, except in case of Ikrah-i-Tam, the abettor of an offence referred to in Chapter XVI shall be liable to punishment of Tazir specified for such offence including death.
(i). Explanation.
An act of or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
(ii). Illustration.
‘A’ instigates ‘B’ to give false evidence. ‘B’, in consequence of the instigation commits that offence. ‘A’ is guilty of abetting that offence, and is liable to the same punishment as ‘B’.
(II). PUNISHMENT OF ABETMENT IF PERSON ABETTED DOES ACT WITH DIFFERENT INTENTION FROM THAT OF ABETTOR UNDER SECTION 110 OF PAKISTAN PENAL CODE 1860.
Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the imprisonment provided for the offence which would have been committed if the act had been done with intention or knowledge of the abettor and with no other.
(III). LIABILITY OF ABETOR WHEN ONE ACT ABETTED AND DIFFERENT ACT DONE UNDER SECTION 111 OF PAKISTAN PENAL CODE 1860.
When an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it.
Provided that the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
(IV). ABETTOR WHEN LIABLE TO COMULATIVE PUNISHMENT FOR ACT ABETTED AND FOR ACT DONE UNDER SECTION 112 OF PAKISTAN PENAL CODE 1860.
If the act for which the abettor is liable under the last proceeding section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offence.
(V). LIABILITY OF ABETTOR FOR AN EFFECT CAUSED BY THE ACT ABETTED DIFFERENT FROM THAT INTENDED BY THE ABETTOR UNDER SECTION 113 OF PAKISTAN PENAL CODE 1860.
When an act is abetted with the intention on the part of the abettor of causing a particular effect and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, Provided he knew that the act abetted was likely to cause that effect.
(VI). ABETTOR PRESENT WHEN OFFENCE IS COMMITTED UNDER SECITON 114 OF PAKISTAN PENAL CODE 1860.
Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
(VII). ABETMENT OF OFFENCE PUNISHABLE WITH DEATH OR IMPRISONMENT FOR LIFE IF OFFENCE NOT COMMITTED UNDER SECTION 115 OF PAKISTAN PENAL CODE 1860.
Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.
(VIII). IF ACT CAUSING HARM TO BE DONE IN CONSEQUENCE UNDER SECITO 115(1) OF PAKISTAN PENAL CODE 1860.
(VIII). ABETMENT OF OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECTION 116(1).
Whoever abets an offence express punishable with imprisonment, if that offence is not committed and no provision is made by this for the punishment of such abetment, the abettor shall be punished with imprisonment of any description provided for that offence for a term which may extend to ¼ part of the longest term provided for that offence or with fine or with both.
(IX). PERSON ABETTED BE A PUBLIC SERVANT UNDER SECTION 116(2).
If the abettor or the person abetted is a public servant then he shall be punished with imprisonment of description provided for that offence for a term which may extend to one half of the longest term provided for that offence or with fine or with both.
(X). ABETTING COMMISSION OF OFFENCE BY THE PUBLIC OR BY MORE THEN 10 PERSON UNDER SECTION 117.
Whoever abets the commission of an offence by the public generally or by any member or class of persons exceeding 10, shall be punished with imprisonment of either description for a term which may extend to 3 years or with fine or with both.
(XI). CONCEALMENT OF DESIGN TO COMMIT OFFENCE UNDER SECTION 118 TO 120.
(i). Offence Punishable with Death or Imprisonment for Life Under Section 118.
If offence is punishable with death or imprisonment for life and the same is
(a). Offence Committed.
If offence is committed then punishment of imprisonment that may extend to 7 years and fine.
(b). Offence Not Committed.
If offence is not committed then punishment of imprisonment that may extend to 3 years and fine.
(ii). Offence Committed by Public Servant Under Section 119.
If a public servant intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, the punishment shall be
(a). If offence is committed he shall be punished with imprisonment for a term which may extend to one half of the longest term provided for the offence or with fine or both and if it is punishable with death or imprisonment for life, the punishment may extend to 10 years.
(b). If offence is not committed, he shall be liable punished with imprisonment for a term which may extend to ¼ part of the longest term provided for the offence or with fine or both.
(iii). Offence Punishable with Imprisonment Under Section 120.
If offence is punishable with imprisonment only and the offence is
(a). Offence Committed.
If offence is committed then punishment that may extend to ¼ provided for the offence with or without fine.
(b). Offence not Committed.
If offence is not committed then punishment that may extend to 1/8 of the longest term provided for the offence with or without fine.
13. CONCLUSION.
The pith and marrow of all the previous discussion there is no iota is untruth shows that abetment is a substantive offence. Section 107 to 120 of Pakistan Penal Code tells us about the abetment and its kinds and punishment regarding the offences which are committed or not committed. Abetment is instigation to a person to do an act in certain way or aid some other person in doing an act which is an offence.
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