What is the principle of Constructive Liability’? Distinguish between Common Object and Common intention.
OR
Define and explain common intention and common object. Is there any difference between the two? If so, explain.
Answer:
Introduction:
The general rule of criminal liability is that it primarily attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. But according to S.34 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. S. 34 is intended to meet a case in which it may be difficult to distinguish between the acts of individual member of a party who acts in furtherance of common intention of all or to prove exactly what part was played by each of them.
The principle underlying in this section is participation in some action with the common intention of committing a crime. Once such participation is established, this section is at once attached. Relevant Provisions: Ss. 34 and 149 of P.P.C.
Meaning of Common Intention:
According to NLR 1980 Criminal 517: According to that Common intention within the meaning of S. 34 implies a pre-arranged plan. Accordingly Black’s Law Dictionary defines intention as under:
“Intention. Determination to act in a certain way or to do a certain thing. Meaning, will; purpose, design. ‘Intention,” when used with reference to the construction of wills and other documents means the sense and meaning of it; as gathered from the words and used therein. When used with reference to civil and criminal responsibility, a person who contemplates any result, as not likely to follow from a deliberate act of his own, may be said to intend that result, whether he desires it or not.
According to S. 34 of Pakistan Penal Code defines the legal term as under:
Acts done by several persons in furtherance of common intention:
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.
Principles:
S.34 P.P.C. embodies the principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually as the purpose is so much is the responsibility. This section deals with the doing of separate acts, similar or diverse, by several person if all are done in furtherance of common intention, each person is liable for the result of them all, as if he had done them himself.
Ingredient of S.34:
The S.34 having the following major ingredients
1. Commission of a Criminal Act.
According to the composition of this section there is essential that a criminal act must be done. Criminal act is commonly known as that act which is prohibited by law and is carried out in violation of the limits prescribed by law is a criminal act.
2. Furtherance of Common Intention:
It is essential that the act done by several persons should be in furtherance of common intention of all the persons involved. It may be happened even at the single moment or during the commission of an offence. If it is prove that what the several accused did are clearly individual acts ‘done of there own accord rather than etc. done in furtherance of a pre-arranged plan or arrangement, the liability of each accused can be in respect of his own individual act and not under S. 34 P.P.C. To constitution common intention it is very necessary that the intention of each one of them be known to rest of them and shared by them.
3. Offence by several persons:
The criminal act must be done by several persons. Common intention is the prearranged plan of several persons. The S.34 is only applied when accused is more than one.
4. Principle of joint liability: S.
34 does not create any distinct offence but nearly lays down principle of joint liability.
5. Vicarious liability:
Essence or liability envisaged under S. 34 lies in the existence of common intention and to attract it the criminal act complained of as to be shown to have been done by are accused and furtherance and common mention for all.
6. Offline to which S.34 may he applicable:
The following of fences can he committed by several persons acting together in furtherance of a common interior.
(a) The offence of criminal misappropriation.
(b) Criminal breach of trust.
(c) The offence of cheating.
(d) S. 34 can legally he applied to conviction on under the second part of S30X (old).
(e) Offence of murder.
(f) Offence of robbery and dacoit.
(g) Offence of larger
(h) Offence of lurking house-trespass.
(i) Offences of murder and abduct on.
(j) Case of assault etc.
7. The scope of S.34:
(‘motion intention within the meaning of S. 34 P.PC. implies a pre-arranged plan, hut it may develop in the course to transaction constituting the offence and may he gathered from the number and nature if injuries. Existence of common intention is a question of fact. It does not mean similar persons.
To convict an accused of an • .9CC applying the section, it should he. Proved that the criminal act was done in concert pursuant to the pre-arranged plan. in most cases the intention is to he in lord from his act or. conduct or other relevant circumstances.
To constitute common intention is accessory that the intentions of .jail one of them -c known to the rest of them and shared -v them .
This section is nice to meet assess in which it may he difficult to dsuieish between the acts of individual members •f a in to prove exactly what part WS taken by each of then in furtherance of the common intention of nil. The reason will\ all are guilty iii such case is that t he prince of accomplices gives encouragement support and protection to the person actually committing an act. All are guilty of the principle offence and not of abetment.
Constructive Liability:
The phrase constructive liability means and connotes the sense that a person is liable in law for the consequences of an act of another even though he has not done it himself. The principles that under certain circumstances though a person did not directly contribute anything towards the commission of a certain offence, in law he shall be equated with the actual and principal offender so far as the legal liability is concerned.
Constructive Liability Arise:
Constructive liability under the Code may arise in three well-defined cases. A person may be constructively liable for an offence, which he did not actually commit by reason of
1. the common intention of all commit such an offence. (S.34)
2. his being a member of a conspiracy to commit such an offence. (S.121-A).
3. his being a member of an unlawful A assembly the members whereof knew that an offence was likely to be committed:
In furtherance of common intention:
S. 34 of P.P.C., if a criminal act is done by several persons in furtherance of their common intention each of such persons is liable for that act in the same manner as if it were done by him alone. Similarly, if an offence is committed by any member of an unlawful assembly, in the prosecution of the common object of the assembly, or such as the members knew to be likely to be committed in prosecution of that object, every member thereof shall be considered guilty of that offence.
Both the sections deal with combination of persons who become punishable sharers in and Offence. Thus, they have a certain resemblance and may be some extent, overlap. But, there is a distinction and difference between object and intention for though their object’ may be common, the intention’ of the several members may differ. In common intention the element of participation in action is the leading feature, i.e. every member must actively contribute towards, the furtherance of the common intention. In the case of common object. the leading feature of participation is replaced by membership of the assembly, at the time of the commission of the offence.
S. 34 of PPC, refers to cases in which several persons intend to do and do an act. There is normally a pre-thought, pre-concert, pre-plan and predesign. it does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act where S. 149 PPC may be applicable, if the different criminal act done was in the knowledge of the members of the unlawful assembly.
Common Intention—Examples:
1. Where out of four accused two were unnamed but render deceased powerless by grabbing arms and other two delivering fatal blows with knife on victim. it was held that the accused were motivated by common intention. Where there is no common design this section is not applicable.
2. Where one out of several persons, took out a knife at the spur of the movement and caused fatal injuries on another, it was held that it was individual act and could not be called a joint act of all the other accused persons.
Common Object
Existence of a common unlawful object is a request for an unlawful assembly under S.149 P.P.C.
Definition: According to S. 149 of the P.P.C. “if an offence is committed by any member of an unlawful assembly, or such as the members 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 offer. I a number of the same assembly is guilty of that offence.
Ingredients of S.149:
The ingredients of the S. 4E is as under:-
(i) Commission of an offence:
The first importance essential of this section is the commission of an offence by any member of an unlawful assembly. S. 149 can only be applied if a person of an unlawful assembly committed a crime.
(ii) Member of unlawful assembly:
According to the essential of S. 149 offence must he committed by a member of unlawful assembly. Here we understand the meaning of unlawful assembly which as under:
(a) According to Black’s Law Dictionary: ‘A meeting of three or more persons who intend either to commit a end crime or to carry out some act, lawful and unlawful that will constitution a breach of the peace”.
(b) According to S.141 PPC.; According to that section unlawful assembly means the assembly must consist of five or more persons having one of the five specified object as their common object.
(iii) In Prosecution of Common Object:
Some offences must be committed by any member of unlawful assembly in prosecution of common object of that assembly.
(iv) Knowledge of Happening of an Offence:
The member of unlawful assembly are also liable where the offence was committed such as the member of the assembly knew to be likely to be committed in prosecution of that object.
Principle:
S. 149 P P.C. deals with the doctrine of vicarious liability and recognize the doctrine of vicarious l5ability and recognize the principle of joint in the doing of criminal act and is an exception to the general rule that a person is liable only for his own acts”. Once an assembly has become unlawful then all things done in the prosecution of the common unlawful object of that assembly are chargeable against every member thereof. The liability of every member extends not only to the acts intended by all to be done, but also to those offences which are likely to be committed in achieving the common object.
Scope of S.149:
It is general principle that a person is liable for what he himself does and not for what ‘other persons do. This section is an exception to the general rule, in that a makes a member of an unlawful assembly vicariously liable, under the circumstances mentioned in the section for an offence omitted by another member of the assembly. S. 149 of the Penal Code is declaratory of the various liability of the numbers of an unlawful assembly for acts done in prosecution of [lie common object of that assembly or for such offences ac the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. This section does not create .i new offence hut provides for vicarious liability for offences committed by others in furtherance of the common object. It constitutes in itself a substantive offence, and treats all members of assembly, whether they do or do not commit any over act equally Liable.
Common Object Examples
1. A, B, C, D and E with deadly arms go to the land of K and try to dispossess him forcibly and K is killed by the only fire of B. Held all the liable for murder of K under Ss. 302/149 P.P.C. . V
2. Ten persons gather at a public place to agitate against Government. Five of them damage the Government V property and also injure me policemen. Held all are liable under Ss. 149/147/324 of P.P.C.
Distinction Between Common Intention (S. 149) and Common Object (S. 34)
Common Intention (S. 149)
1. Act by two or more persons in furtherance of common intention.
2. Enforces of criminal liability and does not form a distinct offence.
3. It is pre-arranged and preplanned.
4. In the furtherance of common intention of all, all the accused must be present on the spot and all of them must take part in the commission of criminal act.
5. Common intention can be developed even t the spur on the moment.
6. S.34’ expounds a doctrine of criminal liability and every criminal act in furtherance of common intention is made liable.
7. As per S.34 all the accused must be present on the spot.
8. S.34 will only apply where the common intention is to do an act which was done.
Common Object (S. 34)
1. Act by five or more persons in furtherance of common object.
2. Enforces vicarious liability but also creates distinct offence to deal with that offence alone.
Being member of unlawful assembly one becomes liable:
It is not necessary at all the accused may be present on the spot at the time of coir mission of the offence. Any member of unlawful assembly acts to prosecute the common object all are/shall liable.
Common cannot be developed so.S.149 applies to an offence committee by any member 0! an unlawful assembly whose common object is mentioned in S.149 of PPC.
Common intention against happening of an act.
As per S: 149 it is not necessary that all the accused must be present at the time of commission of an offence. S.149 will apply even if there was no (Act of XLV 1860) Main Features or Essential Of S. 34 PPC.
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