ANALYZING DOCTRINAL NUANCES OF CONSTRUCTIVE LIABILITY IN PENAL CODE
MUNEEB
A. CHEEMA§
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 Section 34[1] common intention and Section 149[2] common object are the exceptions contained in penal code making the person liable for acts of his associates.
According to section 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 it were done by him alone. Section 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 attracted. The section deals with the acts done by several persons in furtherance of common intention. Where criminal is liable for the act in the same manner as it was done by him alone. This section is neither a punitive section nor does it enact a rule of evidence but mainly relates to the concept of joint liability[3].
Common Intention and Common Object do not create a new offence but deals with the constructive liability of the members of an unlawful assembly for acts done in furtherance of its common Intention and for such offences as its members knew to be likely to be committed in prosecution of its common object.
The principle of constructive or derivative liability laid down in section 149 of penal code is an extension of the same principle laid down in section 34 of penal code. The only difference which emanates between the two is that in the former case the guiding factor is the common object while in the latter case it is the common intention[4].
Its well-recognized canon of
criminal jurisprudence that the courts cannot distinguish between
co-conspirators, nor can they inquire, even if it were possible, as to the part
taken by each in the crime. Where parties go with a common purpose to execute
other in execution and furtherance of their common purpose; as the purpose is
common so much is the responsibility[5].
The concept to impose criminal liability always 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 section 34 common intention and section 149 common object are exceptions contained in penal code making the person liable for acts of his associates.
The inclusion of Common Intention under section 34 which mainly relates to the concept of joint liability 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[6].
Common Object envisaged under
section 149 of the Pakistan Penal code has two parts, one dealing with
liability for offences which are committed in prosecution of the common object
of the unlawful assembly and the second dealing with liability for those
offences which the members of the assembly knew to be likely to be committed in
prosecution of that object. The principle underlying in this section is the
presence in unlawful assembly with some design or purpose of mutuality.
COMPONENTIAL FRAMEWORK OF COMMON INTENTION
In Mahboob Shah’s case[7], Common Intention under section 34 is defined as a principle of joint liability in doing of a criminal act, that the essence of that liability was to be found in existence of a common intention animating the accused leading to the doing of a criminal act in furtherance such intention and to invoke the aid of s.34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of common intention of all.
Etymologically, the word “intention” is a state of mind, which is not ordinarily ascertainable but is to be gathered or inferred only from external acts and surrounding circumstances and for this purpose it is very necessary to examine the act itself of the accused[8]. An intention is the purpose or design with which an act is done. This may consist of an intention to perform some further at, an intention to bring about certain consequence is expected and the word “common” connotes belonging or sharing equally by more than one.
Analytically, common intention simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. An act is intentional if it exist in idea before it exit in fact, the idea realizing itself in the fact because of the desire by which it accompanied[9] Where more than one mind meets in doing or bearing to do an act which amounts to an offence, that preconcert or the mental or physical participation in the commission of the crime is the common intention of the persons giving consensus for committing the criminal act. Thus common intention ensures criminal liability to each of the participants, if the participation being in furtherance of that common intention[10].
There is no doubt that a common intention should be anterior in time to the commission of the crime showing a prearranged plan and prior concert and though, it is difficult in most cases to rove the intention of an individual, it has be inferred from the act or the conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assists those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance that all of them had left the scene of incident together and other acts which all or some may have done as would help in determining the common intention. In other words the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had common intention to commit the offence with which they could be convicted.
In order to apply this section posture and gesture are essential. The essence of liability is to be found in the existence of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. In order to attract provision of section 34, the following is absolute necessity[11];
I.
Pre- Arranged Plan
Common intention necessarily implies a prearranged plan. There must be a prior meeting of the minds of the criminals and a plan formed among them to perpetrate a particular crime. To constitute a common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them. The joint action as envisaged in section 34 consists of translating of intention commonly held into effect. The existence of such pre-concert can be established even by proof of acts performed by individuals after the completion of main crime.
The pre-arranged plan constituting a common intention under the section need not be an elaborate one; it may develop even after the fight has begun. It is not necessary that there should be gap of some long time; common criminal intention may develop suddenly and on the spot.
Under section 34, a pre-concert in the sense of a distinct previous plan is not necessary to be proved the common intention to bring about the particular result may well develop on the spot as between a number of persons with reference to the facts of each case and even if it develops on spot, it must be anterior in point of time to commission of crime showing a pre-arranged plan and prior concert.
II.
Act in furtherance of common
intention
The expression in furtherance of common intention of all was not available in the original text. The legislature by section 1 of Act XXVII of 1870 repealed the original section and in substituting another section therefore, inserted the words in furtherance of common intention of all as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if were committed by him alone.
As such, the furtherance of common design is necessary condition before this rule is made applicable to the use of an individual person. This change of law is very significant and it indicates the idea of attracting the provision of this section and fix constructive guilt on each of the several accused there must be participation in action with a common intention although the different accused might have taken different parts.
In Furtherance of Common Intention is shown when Utterance of certain damaging words by an accused to instigate an offender to commit an offence may not amount to an act committed in furtherance of common intention to attract Section 34, P.P.C, unless prosecution proves that offence so committed was result of influence and control of instigator over offenders who had committed that offence. It is, therefore, necessary for Court to find out whether co accused while committing an offence were acting independently or they were under influence and control of accused that instigate them. If act committed by an accused appears to have been done independently without being influenced by instigation of other accused then alleged instigator cannot be convicted and sentenced under the garb of Section 34.
III.
Knowledge and Intention
Knowledge is not same thing as intention. There is a difference between the intention to do a certain thing and knowledge that a certain thing is likely to be the result of one’s act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons will arise under this section only where such criminal act don in furtherance of common intention of the persons who loin in committing it. If they had no intention of doing such an act but only knew it to be likely that such a criminal might be perpetrated as consequence of their coming together, the section will not apply.
“Common Intention” and “Similar Intention” Similar intention by itself is not enough to bring the case within the ambit of Section 34, P.P.C. For applicability of Section 34, P.P.C it has to be conclusively established that the persons concerned had common intention for committing the criminal act which was in concert pursuant to pre-arranged plan.
To attract Section 34, it has to be established that accused was animated with common intention as distinct from similar intention. Common intention implies acting in concert and existence of pre-arranged plan and that is to be proved either from conduct of accused or prevailing circumstances at the time of occurrence or from any incriminating facts. Where there is no evidence of common design this section is not applicable. In order to attract Section 34 it is not sufficient to prove that an offence is a likely consequence of the common intention.
Section 34 of the penal code, 1860 is intended to meet a case in which it may be difficult to distinguish between the acts done in furtherance of common intention of the offenders. The essence of liability is to be found in the existence of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Common intention usually consists of some or all of the following elements: Common intention, motive, preplanned preparation and concert pursuant of such plan.
Common intention, however, may develop even at the spur of the moment or during the commission of the offence. Conversely common intention can also undergo a change and disappear at the spur of the moment or in the course of the transaction. Intention is a mental condition and has often to be gathered from the facts and the surrounding circumstances of the case as direct evidence is very often not forthcoming.
Common intention can also develop even at the spur of the moment prior to the main offence or even during the commission of similar or lesser offence. Not only that and this is important, conversely, common intention can also undergo change at the spur of the moment prior to the offence or even during a transaction. In other words, it is not impossible to visualize in law, that if two or more persons had common intention before the commencement of a criminal act, it can be changed either to a different intention (may be of a lesser crime) of negation of crime; and proceeding further, the commonness regarding a certain intention might be abandoned at any stage.
IV.
Active Participation
Mere presence of persons on scene of occurrence would not necessarily mean that they acted in furtherance of common intention in commission of offence. Some sort of pre-arranged plan must be proved that criminal act was done in concert pursuant to pre-arranged plan. Held: In present case it could not be safely inferred that any such pre-arranged plan existed to attract vicarious liability u/s. 34.
Presumption of constructive intention must not be readily applied or pushed too far. In case there is a little doubt with regard to sharing of common intention, benefit should go to accused. This benefit should be given to accused not as a matter of grace but as a matter of right. Question of common intention u/s. 34 is a question of fact and should be determined in accordance with circumstances of each case. Determination of common intention would be dependent upon inference from motive of accused and his/her act, conduct before or after occurrence. Mere presence on spot during spot during occurrence would not justify accused being imputed with requisite intention u/s. 34.
COMPONENTIAL FRAMEWORK OF COMMON OBJECT
Defined simply, The collective design of an accused person emerging by joining an unlawful assembly in wake of the offence committed and which is likely to be committed in prosecution of that deign, is the common object. The intended cause to include the common object is to deal with the scenarios by adopting regulatory framework and mechanisms of mob activities. The common object undoubtedly is an efficient legal tool to manipulate mob psychology.
The common object of an unlawful assembly is to be inferred from the membership, the weapons used and the nature of the injuries as well as their surrounding circumstances. Going in a body cannot be decisive factor in inferring the common object. To saddle a person under section 149 is necessary that the person has shared the common object at all crucial stages with other associates.
The common object to constitute an unlawful assembly must be an immediate one and not one to be carried out at some future time. Prosecution of the common object means something immediately connected with the common object. It is the common object of the unlawful assembly which is the central fact on which the liability of persons other than the actual doer of the act depends.
The common object of the offence can be developed at the spur of the moment. In other words, without hatching a conspiracy in regular fashion by sitting and deciding at a meeting, persons commit an offence or offences having developed common object just before the occurrence.
The original common object may be abandoned and a fresh common object developed in the course of the activities of the assembly, and in such cases expecting those members of the assembly who prove that they did not share in the common object and were not parties to the commission of the offence, the other members will be liable[12].
Section 149 of penal code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object[13]. This section does not create an offence but provides for vicarious liability for offences committed by others in furtherance of common object[14]. In order that this section may apply the accused must be;
I.
Unlawful Assembly
The ingredients of unlawful assembly are, firstly, offence must be committed in prosecution of common object of assembly and secondly, offence must be such as member of that assembly knew to be likely to be committed in prosecution of common object of assembly.
Section 149 only an enabling provision does not create or give birth to any substantive and independent offence nor could anyone be tried for this offence alone. Applicable only if there was intention on part of members of accused party to form an unlawful assembly. If intention was not there, then S. 149 could not be applied. Consequently principle of constructive liability would not be involved. In such case, each person in group of persons would be liable for his or their own act.
Applicability and scope of Common object and liability of members is dependent upon the Liability of every member of unlawful assembly and it extends not only to acts contemplated by all but also to those offences which are likely to be committed in achieving common object.
Unlawful assembly is defined in section 141 of the code to be an assemblage of five or more persons armed with common object to commit offences as enumerated in section. The crucial question to determine in such a case is whether the assembly consisted to five or more persons and whether the said persons entertained one or more of common objects are specified by section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as matter of idle curiosity without intending to entertain the common object of assembly[15].
II.
In Prosecution of Design
Existence of common object of unlawful assembly is a question of fact. Section 149 should not be construed to mean that for every act done by a member of an unlawful assembly, all other members of that assembly would be equally liable with him. Section 149 would not apply if one member of unlawful assembly commits an offence which is not in prosecution of common object. Factors which should be kept in mind when determining such liability of an accused under second part of Section 149. By intentionally avoiding use of phrase “had reason to believe” in favor of selected expression “knew to be likely to be committed” in second part of Section 149. Legislature wanted to emphasize a greater amount of cognition and more positive perception on part of accused than mere supposition. It would not be possible to assume that whenever there is only a possibility one way or other that accused should have assumed likelihood of a certain event then second part of Section 149 would apply. Accused must be shown to have known through cogent acts and reasoning that offence charge was likely to be committed. It is in this sense that legislature also avoided use of expression “might have known”. Question of knowledge as for treatment of each individual case is one of act which should be decided only after full application of mind to all relevant attending circumstances.
Section 149 of the Pakistan Penal has two parts. First, dealing with liability for offences which are committed in prosecution of the common object of the unlawful assembly and the second, dealing with liability for those offences which the members of the assembly knew to be likely to be committed in prosecution of that object. The distinction between two parts of the section appears from the following passage: “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. To attract the constructive liability incurred under Section 149 of the Pakistan Penal Code, it is not necessary to show that the offence committed was identical with the common object of the unlawful assembly, nor is it an essential requirement for such liability that the offence committed must in every case be directly and immediately connected with the prosecution of the common object of the unlawful assembly. The second part of the section would directly come into play where the offence was such as the members of the assembly knew to be likely to be committed in prosecution of that object. When deciding the question of constructive liability it is necessary to consider the effect of both the parts of the section, the second part being of a wider import than the first. However, the question whether all the members of an unlawful assembly are liable for an act committed by one or more of them, is a question of fact which has to be determined in relation to the peculiar circumstances of each case.
WORKING DIVIDE OF COMMON INTENTION AND COMMON OBJECT
The leading feature of section 34 is the element of participation in action, whereas, membership of assembly at the time of committing and the offence is the important element in section 149[16]. The term object and intention do not denote the same thing[17]. The expression common intention implies a pre-arranged plan before the act. The common object of an unlawful assembly does not require a prior concert[18]. The expression common object is wider in its scope than the expression common intention.
Common intention as used in section 34 should not be mixed up with the common object as in section 149 of penal code. The two expressions are not synonymous and they have to be used in different senses section is restricted to common intention and does not embrace any knowledge. Under section 149 it is the knowledge which is necessary to attract culpability[19].
Before the person can be saddled with constructive liability and convicted for the act done by another person under section 34, it must be satisfactorily proved by the prosecution that the person so convicted had common intention of doing that particular act with the person actually doing it.
Common intention should not mix with common object. In section 149 of the code, both are not in any way synonymous. Under section 149, a person who is a member of unlawful assembly is guilty of the offence committed by another member of the unlawful assembly although he had no intention to it because it is done in prosecution of common object of the assembly of which both were the members.
Similarly, the same or similar intention should not be confused with common intention. The dividing line between the two is very thin and that is very material and substantial. A person in doing of act may have a common intention with him so as to invoke the aid of section 34. In the latter case there is always an element of pre-planning before the act is actually done between the two or more persons. Section 34 will in no case apply to offence falling under section 34 of Penal Code[20].
The object of an unlawful assembly may be common, but this does not mean that the intention of the several members of unlawful assembly in regard to the things to be done in prosecution of the object is common. Unless the intention is common, section 34 will not come into play but although the intention is not common.
FIGURE I COMMON INTENTION
FIGURE II COMMON OBJECT
Section 149 may apply, even where the original object of an assembly was unlawful in may turn into an unlawful object subsequently and if an offence is committed by a member of the assembly in prosecution of unlawful object section 149 will apply but not section 34, unless the offence has been committed by several persons who are members of unlawful assembly in pursuance of their common intention
For the purpose of section 149, in order to determine whether an offence has been committed in prosecution of common object of an unlawful assembly, it is not necessary to find that the offence has been committed by a number of persons in pursuit of a pervious concert arrived at between them[21].
For the purpose of section 149 a previous meeting of minds of several persons in regard to the offence charged and alleged to be committed in prosecution of the common object in an unlawful assembly is not necessary[22].
In some cases the common object of an unlawful assembly and common intention of the members of the assembly committing a crime in pursuance of common intention of the members[23]. Where the common object of an unlawful assembly is to take possession of a piece of land by use of force and a murder is committed in the ensuing fight, the murder cannot be said to be necessarily a crime committed in furtherance of common intention of the members of the unlawful assembly, unless it is proved that it was committed by a number of persons who had concerted a plan to commit such murder in prosecution of common object[24].
Lesser the number of people gathered together, the greater would be chances of developing common intention in the shortest and quickest possible time while the minds of five or more than five persons could not react together (except in mob psychology in some cases) suddenly in unison, without their having made preparation and having thought out the whole plan[25].
CONCLUSION
The doctrine of constructive liability makes the principal and the accessory both liable for their acts in violation of criminal law. This doctrine emanates in to two sections of penal code namely common intention section 34 and common object section 149. Section 34’s specific purpose is to bring the accused under the same umbrella as that of his co-accused and section 149’s incorporation in penal code clearly underlines the handling mechanisms of mob activities.
The principle of constructive liability laid down in section 149 of penal code is an extension of the same principle laid down in section 34 of penal code. The only difference between the two is that in the former case the guiding factor is the common object while in the latter case it is the common intention.