CRIMINAL LAW-II

EXPLANATION AND ANALYSIS OF SECTIONS 34, 107, 120 & 149 OF

THE PAKISTAN PENAL CODE, 1860

SUBMITTED BY: SHAHZAIB (061)

SUBMITTED TO: SIR ASHRAF QURESHI

SEMESTER: LLB-6B

DEPARTMENT OF LAW

BAHRIA UNIVERSITY ISLAMABAD

 TABLE OF CONTENTS

PREFACE..................................................................................................................................3

INTRODUCTION......................................................................................................................4

COMMON INTENTION...........................................................................................................4

COMMON OBJECT..................................................................................................................5

ABETMENT..............................................................................................................................5

CRIMINAL CONSPIRACY......................................................................................................6

CRITICAL ANALYSIS.............................................................................................................7

1. Difference Between Common Intention and Common Object................................7

2. Difference between Abetment and Criminal Conspiracy........................................8

CONCLUSION..........................................................................................................................9

BIBLIOGRAPHY....................................................................................................................10

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PREFACE

This paper seeks to discuss, explain, illustrate, and distinguish among critical concepts under
the Pakistan Penal Code (PPC), 1860 such as a common object, common intention, abetment,
and criminal conspiracy. In this regard, in the first part, the paper explains each of the
concepts separately in the light of various judgments, and in the second part, the paper
presents the analysis of these concepts. This analysis presents differences between these
concepts and illustrates the homogeneities among these various sections. Lastly, the paper
presents a conclusion.

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INTRODUCTION

The rationale for the existence of criminal laws is to present a deterrence to those who
represent a danger to society. In this sense, the Pakistan Penal Code (PPC) is such a
comprehensive code that not only charges the overt criminal actions and omissions but also
deals with the collection, planning, concealing, gathering, etc. in pursuance of the
commission or omission of an offence; it specifically illustrates circumstances and situations
wherein an act might constitute an offence under the penal law.

Moreover, as it is a comprehensive penal law, it elaborates and distinguished among the

critical concepts of criminal law, such as common intention, common object, abetment, and
criminal conspiracy. It is worth noting that though these concepts appear to be very mundane
concepts; however, the penal law distinguishes them to the great extent and provides broad
demarcation between these two.

COMMON INTENTION

Section 34 of the PPC defines common intention as, “when a criminal act is done by several
persons, in furtherance of the common intention of all, each such person is liable for that act
in the same manner as if it were done by him alone.”

This section simply recognizes a commonsense 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. 1
The reason why all are deemed guilty in cases is that the presence of an accomplice affords
encouragement, protection, and support to the person actually engaged in the commission of
the offence.2

This section is neither punitive nor enacts a rule of evidence, but mainly relates to joint
liability.3 Hence, it must be noted that common intention may be inferred from the

1
PLD 2007 SC 93

2
2005 PCr.LJ 1383

3
PLD 2017 PESH 5

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surroundings,4 and it is necessary to establish by proof an overt act on the part of the
accused.5

This section focuses on a prearranged plan and criminally acting in concert pursuant to the
plan. It is established prior to the commission of the offence or could develop on the spur of
the moment. That is to say, in order to constitute common intention, the prosecution has to
establish, whether through direct or circumstantial evidence, that the intention of each one of
the accused was known to the rest of them and shared by them prior to the commission of the
offence.

COMMON OBJECT

Section 149 of the PPC defines a common object as: “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 the committing of that offence, is a member of the
same assembly, is guilty of that offence.”

This section creates an offence committed under the common object and aims at the principle
of vicarious liability. The offence is divided into two parts: firstly, the member of unlawful
assembly committed an offence in pursuance of a common object, or, secondly, he knew the
probability of the commission of an offence under a such common object.

This section penalizes each member of unlawful for acts of others. However, conviction is
not extended unless it is determined that each member knew the common object. The person
can be convicted if the commission of an offence falls in either part of the section. The
common object implies that the accused knew the purpose, design, or intention that was
common to all the offenders, as such they all were aware of it and concurred with it. There is
no hard and fast rule to determine the knowledge or intention however it is adduced from the
circumstances. It would not be penalized under this section if the member of an unlawful
assembly committed an offence that was not the common object of the assembly.

4
2020 YLR 1476

5
1969 SCMR 454

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ABETMENT

Section 107 of the PPC defines abetment of doing a thing as, “a person abets the doing of a
thing, who: firstly, instigates any person to do that thing; or, secondly, engages with one or
more other person or, persons in any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that
thing; or thirdly: intentionally aids, by any act or illegal omission, the doing of that thing.”

Abetment is discussed from Sections 107 to 120 of the Pakistan Penal Code, 1860. The literal
meaning of “abet” is to aid and encourage someone to do an act. However, in the light of the
PPC, it is simply defined as the instigation or provocation by one person to another to commit
a crime or engage in a conspiracy to commit a crime, and any act done in furtherance of the
such conspiracy or aiding in the doing of an illegal thing.

The person instigating, encouraging, or promoting another to do so is called an ‘abettor’. The

person who commits the offence is called the ‘principal offender’.

Example: “A” and B plan on killing “C”, wherein “A” draw the plan and sets the traps to kill
“C”. “B” knowing the whole scenario helps “A” to create gun traps. This is considered an
abetment wherein B helped the offender (A) in the commission of a crime.

Mens rea (a guilty mind) is an important element in committing abetment, whereby the
abettor and the principal offender must have the intention, i.e., mens rea. It is impossible to
commit abetment without a guilty mind.

CRIMINAL CONSPIRACY

Section 120A and 120B define criminal conspiracy and its punishment respectively. Section
120A reads as, “when two or more persons agree to do, or cause to be done, (1) an illegal
act, or (2) an act which is not illegal by illegal means such an agreement is designated a
criminal conspiracy: Provided that no agreement except an agreement to commit an offence
shall amount to a criminal conspiracy unless some act besides the agreement is done by one
or more parties to such agreement in pursuance thereof.

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Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement
or is merely incidental to that object.”

While Section 120B defines punishment as, "(1) whoever is a party to a criminal conspiracy
to commit an offence punishable with death, imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where no express provision is made in this Code
for the punishment of such a conspiracy, be punished in the same manner as if he had abetted
such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding six months, or with a fine or with
both.

A conspiracy consists of a combination or agreement by a person to do an illegal act or effect

a legal purpose by illegal means and is complete when two or more persons agree to do an
illegal thing. The agreement must be the product of two consenting minds uninfluenced by
any consideration of threat, intimidation, coercion, or undue influence.6 It is necessary to
establish that a general agreement, oral or written, was privately and secretly reached
between the conspirators even though the act was not performed. 7 So long as such intention
rests in mind, the act is not indictable. Hence, the intention can either be established by direct
or circumstantial evidence.

CASE LAWS

PLD 1956 SC 215 (India) – A single person cannot commit criminal conspiracy by himself.
If there is a situation where four persons are charged with criminal conspiracy and three of
them get acquitted, the one person left behind cannot be held liable for criminal conspiracy
alone under section 120 of PPC, 1860.

PLD 1979 SC 53 – when two or more conspire, it will not be a criminal conspiracy unless
that conspiracy is about any illegal activity or about doing a legal act through illegal means. It
is also mentioned in the same case that if a person is made involved in a criminal conspiracy

6
PLD 1979 SC 53

7
Ibid.

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by coercion, intimidation, undue influence, without his free will, compelled to be a part of
any such conspiracy by force, or by threats, then any such person would not be held liable for
the offence of criminal conspiracy.

1998 P.CR.L.J. 1484 – in this case, it was held that for constituting a criminal conspiracy,
there needs to be an agreement between two or more people to do an illegal act or a legal act
that is to be done illegally.

CRITICAL ANALYSIS

1. Difference Between Common Intention and Common Object

To start with, both the common intention and object differ, even though they are often used
interchangeably. Notably, section 34, Common Intention, of the PPC sets out the principles
of constructive liability without the creation of any substantive offence, as it is only a
definitive clause that defines common intention. It also specifies no minimum number of
persons fixed who should share the common intention. Moreover, it requires a prior meeting
of the minds of the offenders and that they actively participate in the common cause; that is to
say, the act must be done in furtherance of the common intention.

Furthermore, the pre-requisites for the application of section 34 provide that it must be
proved that act was done by two or more persons and that such an act was committed in
furtherance of common intention whereby they all intended to do so. The act must be pre-
arranged based on the prior meetings of minds. It is worth noting that the plea of mitigating
circumstance depends on the existence of extraordinary circumstances on a case-to-case
basis. Also, the distinction between common intention and similar intention be kept in mind.

On the other hand, section 149, Common Object, is a substantive offence that creates an
offence chargeable under penal law. It speaks about a common object shared by at least five
persons, who then proceed in the commission of that offence. 8 Also, it falls under the offence
of unlawful assembly, whereby active participation is not necessary because being a member
of the unlawful assembly itself incurs criminal liability. Notably, the act must be either done

8
PLD 1954 Lah. 78

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in the prosecution of the common object or must be such as was known to be likely to be so
committed. In common object, there is no need for active participation, whereby every person
involved in committing the crime may or may not be held liable.

However, under common intention, every person involved in committing a crime having the
same intention is held liable.

Common Intention Illustration

"Three people make a plan to kill Palak, and on that spot, they found B (enemy of Palak). B
gets involved with all three people to kill Palak. Here, B has joined them on that spot only
but shares common intentions. Hence will be held liable equally."

Common Object Illustration

"A group of people consisting of A, B, C, and D attack X, their enemy. While A, B, and C use
iron rods to kill X, D uses a stick to attack X. Due to the sudden attack, X dies. D is not liable
to the same extent as A, B, and C."

2. Difference between Abetment and Criminal Conspiracy

Although the bare reading of Abetment and Criminal Conspiracy under the PPC shows that
both these concepts are interchangeable and similar; however, both the offences differ greatly
in nature, and the PPC provides separate domains where they can be attracted and attributed.

Firstly, the offence of Abetment under section 107 differentiates between both the abettor and
the actual perpetrator of the offence under criminal law. However, the offence of criminal
conspiracy implies the involvement of two or more persons, sharing a common intention,
whereby they make an agreement to commit an offence although every one of them may or
may not contribute equally but help each other as they have the same intention.

Secondly, it is possible that the person being abetted may not know the nature of the such
offence, whereas, under criminal conspiracy, the conspirators will have the knowledge of the
commission of a crime as well as mens rea. They contribute equally and share the actions of
the conspiracy which makes them liable for the same.

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Interestingly, to be tried for abetment, the person must have committed the act of aiding or
instigating, or helping the principal offender. However, in the case of a conspiracy, it is
irrespective and immaterial whether an offence was committed or not. The prosecution can
try a person for having the agreement and the knowledge of the act.

The parties to a conspiracy are called conspirators, while parties in abetment are called the
abettor and the principal offender. Hence, the abettor is not a principal offender whereas a
conspirator (accused) is a principal offender.

Consequently, abetment can be done in three ways, whereas conspiracy is a method of

abetment. It can be said that abetment is the genus, whereas conspiracy is a species. The
concept of criminal conspiracy has a wider jurisdiction in most cases than of abetment.

Lastly, under section 107, a mere combination of persons or agreement between them is not
sufficient. The conspiracy must be at the forefront of the act or omission in order to commit
the crime conspired for. However, under section 120A, there need only be an agreement, if it
is to commit an offence. Once an act or illegal omission occurs pursuant to a conspiracy to
commit an offence, the conspirators will become guilty of abetting the offence.

CONCLUSION

Choate offences are those that are complete and they have the four stages of crime, whereby
the illegal act is done by the parties. If the offence is not committed, but all the stages of
planning and preparation are done, it is considered to be an inchoate or incomplete offence.
Abetment and criminal conspiracy are two offences that are mostly seen as inchoate offences.

The penal law of Pakistan has all the required provisions that a country must have, but the
execution of the same is not being conducted in the right way and lacks professionalism. The
laws relating to criminal conspiracy and abetment need to be revamped so that social welfare
can be easily achieved. The courts should make sure that the quality of justice provided to the
public is right as the crime rates in the country have been increasing massively.

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 BIBLIOGRAPHY

 Pakistan Law Site

 The Pakistan Penal Code, 1860 Commentary by Abdul Basit.
 Common Intention and Common Object - Academike (lawctopus.com)
 Common Intention and Common Object under the Indian Penal Code 1860
(legalservicesindia.com).

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