Relation of section 107, clause (2) with section 120-a, p. P. C.

RELATION OF SECTION 107, CLAUSE (2) WITH SECTION 120﷓A, P RELATION OF SECTION 107, CLAUSE (2) WITH SECTION 120‑A, P. P. C. BY ABDUL GHAFOOR CHOUDHRY, BARRISTER‑AT‑LAW, LAHORE Before the introduction of sections 120‑A and 120‑B, there were only particular forms of conspiracies. These particular forms of conspiracies did not cover the whole field of conspiratorial agreements, and thus, it was found necessary that conspiracies not included in the particular forms of conspiracies should be punished under clause (2) to section 107 as abetments. After the introduction of the offence of conspiracy as a substantive crime, it then became necessary to deal with the status of section 107, clause (2) in juxtaposition with section 120‑A. Section 107, clause (2) of the Penal Code reads as follows: A person abets the doing of a thing, who, "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." Explanation 5 to section 108 lays down that "it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed." The illustration (Illustration reads, "A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name, C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.) to Explanation S makes it clear that a mere knowledge of a design on the part of another to commit an offence and speaking to that other about it without evidence that the person was aware of the design and instigated the other to commit the offence, does not constitute abet ment (Venkatasami, (1886) Weir 3rd Edn. 187.). Explanation 5 is only attracted to the cases, for example, where the persons who conspire to do a particular act are too many to participate in every plan of the object. Although some among them are not fully conversant with the details, they are yet liable. Explanation 2 to section 108 (Illustration to the Explanation 2 runs as follows: "(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to murder. (b) A instigates B to murder D. D in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.") reads that "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." Reading these provisions together, we come to the conclusion that abetment by conspiracy takes place when two or more engage in a con spiracy to do a thing, and an act or illegal omission takes place in pursu ance of that conspiracy and in order to the doing of that thing, but it is not necessary to complete the offence that the act abetted should be com mitted or the effect requisite to constitute the offence should be caused, nor is it necessary that the abettor should actually concert .the offence with the person who commits it. DIFFERENCE BETWEEN THE TWO OFFENCES 1. Abetment by conspiracy (Section 107, clause 2) relates only to offences while the substantive offence of conspiracy relates as well to illegal acts which are not offences. Clause (2) to section 107 only defines what amounts to abetment of a "thing" by conspiracy. The word "thing" is used to denote the meaning of an offence, nothing less and nothing more. Nowhere in the whole of Chapter V (the chapter dealing with Abetment) or in the whole of the Code is the word "thing" used except here. Section 109 of the Code which provides punishment for abetment, does not punish the abetment of a "thing" what it punishes is the abetment of an offence. In English Law as well, abetment is only possible of an offence and not of any other unlawful act not amounting to an offence. Hence, it is safe to say that abetment by conspiracy is confined to offences only. On the other hand, section 120‑A defines a conspiracy not only to commit an offence but also to do an illegal act and even an act which is not illegal by illegal means. 2. In abetment by conspiracy, some act or illegal omission must take place in pursuance of the conspiracy, while in the substantive offence of conspiracy, no such overt act is necessary unless the conspiracy is to commit an act which is not an offence. The law of conspiracy as embodied in section 120‑A is much more harsh to the accused than the offence of abetment by conspiracy, because the latter refers only to conspiracy to commit an offence and some act or illegal omission is necessary to take place, while the conspiracy as a sub stantive offence refers to agreements, (i) to commit offences, (ii) to commit illegal acts which are not offences, and (iii) to commit acts which are not illegal by illegal means, and some overt act is necessary only in cases (ii) and (iii). In the case of the first kind of conspiracies, no overt act is necessary and mere agreement is punishable. In other words, under clause (2) to section 107, the mere factum of two or more agreeing to commit an offence does not constitute any offence, whilst under section 120‑A, it is sufficient for their being made liable for the offence. Some overt act in evidence of the intention of the accused is held necessary only where the conspiracy is to commit an illegal act not amounting to an offence and to commit an act which is not illegal by illegal means. 3. For an offence under sections 120‑A and 120‑B, sanction for prosecution is necessary under section 196‑A of the Criminal Procedure Code, while no such sanction is needed for prosecution under section 107, clause (2). 4. In a charge for abetment by conspiracy it is not necessary that all those engaged in it should concert together. It is enough if they did an act or acts in pursuance of that conspiracy (A I R 1926 Rang. 53; 94 I C 717; 4 Bur. L J 213; 27 Cr. L J 669 (D. B.)). In conspiracy, the actual agreement is necessary, though their coming into contact with each other is not necessary. Again it was held in Jan Muhammad v. Crown (P L D 1956 Kar. 395) that conspiracy is one of the forms of abetment and it seems that conspi racy by way of abetment requires an overt act, whereas conspiracy under section 120‑A to commit illegal act requires no overt act. Abetment is just as much a substantive offence as is conspiracy under section 120‑A. PROVISIONS OF SECTION 107, CLAUSE (2) REDUNDANT Before making the sweeping statement that an offence under section 107 clause (2) has been rendered otiose by the introduction of Chapter VA i.e., the offence of conspiracy as a per se substantive crime, it is essential to put forward the views expressed by Courts in some cases where it has been held that despite the conspiracy being made a substantive offence, the offence of conspiracy as a species of abetment still exists. Pratt, J. C., and Hayward, A. J. C., in the case of Udhasing Tahilsing v. Emperor, ((1916) 10 S L.R 69; 17 Cr. L J 366; 35 I C 670.) observed as follows: "It is optional for the prosecution to proceed for abetment of the offence by conspiracy under section 107 clause (2) or for the conspiracy as a substantive offence under section 120‑B. This is in accord with the law of England." The view expressed by their Lordships is undoubtedly in accord with the law of England, but we do not know of any case where the prosecution has been given an option either to proceed against the accused for abetment as a conspiracy or conspiracy itself. All the charges made are those of conspiracy as a substantive offence. This decision was followed by the same Court in Kishanchand V. Emperor ((1925) 27 Cr. L J 243; 92 I C 419.) where it was held that "the plea that where the only evidence given in proof of the conspiracy is the evidence of abetment of an act which is in itself an offence is untenable." It was further observed that it is optional for the Crown to proceed for abetment of the offence com mitted in pursuance of the conspiracy or of the offence of conspiracy." Beachcroft, J., in Harsha Nath Chatterjee v. King Emperors (42 C 1153 See also 42 C 957.) said that an act done to carry out its purpose amounts to abetment. In another case (92 I C 462.) it was held that conspiracy is a substantive offence and has nothing to do with abetment. In Jugeshwar Singh ((1935) 15 Pat. 26.) it was held that it is not necessary to invoke section 120‑A where the criminal conspiracy amounts to an abetment under section 107 clause (2) of the Code. In view of these observations, it is submitted that section 107, clause (2) does not seem to serve any distinct or useful purpose after sections 120‑A and 120‑B were brought into force. There is no ingredient in the offence of conspiracy as a mode of abetment which is not covered by section 120‑A. If an agreement to commit an offence constitutes, by itself, the offence of Criminal Conspiracy under section 120‑A an agreement to commit an offence followed by some overt act in pursuance of the agreement [as required by section 107 clause (2)] will constitute the offence of Criminal Conspiracy with greater reason. If it is optional for the prosecution to proceed either under section 107, clause (2) or section 120‑B, the provisions of section 107, clause (2) become otiose and useless. If every set of facts can give rise to both offences and if it is permissible for the prosecution to proceed under either of them, then, certainly the provisions of section 107 clause (2) become redundant. If, on the other hand, a distinction however subtle can be made between facts amounting to abetment by conspiracy and conspiracy as a substantive crime, then the provisions of section 107 clause (2) are certainly of some use. But no such distinction exists. If it be said, that the purpose served by section 107 clause (2) is that no sanction under section 196‑A of the Criminal Procedure Code is necessary to initiate proceeding thereunder, while it is necessary in the ease of section 120‑A it becomes apparent that under section 107 clause (2) an act or illegal omission following the conspiracy becomes necessary to be proved by the prosecution which is not the case under section 120‑A. Absence of necessity of obtaining the sanction instead of rendering the prosecution's work easier gets the prosecutor into hot water. It is easier to obtain sanction for prosecution than to prove an act or illegal omission. In this view, the provisions of section 107 clause (2) became redundant when the offence of Criminal Conspiracy as a substantive crime came into force and should long ago have been abolished. However, it was held in Jan Muhammad v. The Crown, (P L D 1956 Kar. 395 (Constantine and Muhammad Bakhsh, JJ.)) that conspiracy is one of the forms of abetment and it makes no difference that conspiracy by way of abetment requires an overt act, whereas conspiracy under section 120‑A of the Penal Code, to commit the illegal act requires no overt act. Abetment is just as much a substantive offence as is conspiracy under section 120‑A. About the case of Jugeshwar Singh, ((1935) 15 Patna 26.) it may be remarked that the offence of conspiracy is committed irrespective of the fact whether or not the offence which is the object of the conspiracy has been committed or not. Never theless the Court held that "Where a Criminal Conspiracy amounts to an abetment under section 107 it is unnecessary to invoke the provisions of sections 120‑A and 120‑B because the Code has made specific provision for the punishment of such a conspiracy. In the case before us, the offences which are alleged to have been the object of the conspiracy were in fact committed, so the conspiracy amounted to abetment. The Court should not, therefore, have framed additional charges under section 120‑B. Appel lants having been convicted on the substantive charges framed were not liable to be convicted also of conspiracy." "JUSTICE OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE" Speech by Mr. Justice A. R. Cornelius, Chief Justice, Supreme Court of Pakistan, at Dinner Meeting of the Rotary Club, Karachi, on 2nd April, 1963 I am very pleased to‑day to be able to redeem my promise made some considerable time ago to Rotarian Ahmad Jaffer to attend one of these meetings of the Rotary Club, Karachi. It is a privilege and pleasure to be in such a distinguished company. I am aware of the sincerity with which Rotarians all over the world pursue the motto of "service before self". Although, only an honorary Rotarian myself, it is under the influence of that motto that I have undertaken to put together a few of my thoughts to place before this meeting. What I have to say to‑day was suggested to me by a learned contribution which I read some little time ago in a feature which appears every Friday in the "Pakistan Times" of Lahore under the heading "The World of Islam." I put it mildly when I say that reading this supplement from week to week has been the commencement of are‑education for me. It has been the beginning of what I hope may eventually be a real understanding of the spirit and the principles underlying the culture of Islam. In the pre -Partition period when I received my education, it was only a small minority of students in India who received any training in this vast field of human endeavour and achievement. My own education was in scientific subjects and what I learnt of Islam was a mere smattering of the Persian language for the purposes of passing the matriculation examination. Our teacher in the State High School in Indore was a member of the Jaora Nawabs family, a genial and courtly person whose knowledge of Persian was probably much wider than he cared to show. His inclination to impart that knowledge was at a somewhat lower level and my recollection of those irresponsible years is that the class learnt the set books practically by heart, gaining the meanings of words and sentences much more from each other than from their teacher. However, that is no real excuse for remaining for so long a period and particularly a prolonged period of service in the Punjab in contact with a Muslim majority population, in such ignorance of the principles and practices and the underlying basis of the Islamic culture. So I am grateful to the "Pakistan Times" for this opportu nity to equip myself with some knowledge of the wide range of effort and achievement in the humanities throughout the world of Islam. I begin to appreciate the source of that strength and inspiration which has enabled the majority community successfully to carry the enormous responsibilities of an independent place in the community of nations these last fifteen years. The same strength and inspiration provide the promise for greater success in the future. JUSTICE TEMPERED BY BENEFICENT CONSIDERATIONS The particular article which attracted my notice was one dealing with the concept of compassion in the field of justice in Islam. It was a lengthy article, citing chapter and verse, which I do not propose to repeat before you. The quotations from the holy Quran and the sayings of the holy Prophet were sufficient to show that from the earliest times the concept of justice in Islam has been based on exact principles, concerned with equality in the dispensation of justice, tempered by beneficent considera tions, lying at the root of the life of the community. There are injunctions governing the conduct of Judges which are of total validity in any community where justice is regarded, not merely as a function of an earthly authority, but as partaking of that perfection of dispensation and compensa tion which dwells in the region of the Absolute. Equity has held an honoured place, side by side with law, from the very beginnings, that is, it has never been a mere ad hoc deviation, nor has it been unsheathed merely to resist a cruel application of law, by way of mitigation. The writer treated of the principles of Adal and Ehsan as being the fundamentals of this school of justice in a manner which made of the judicial function an exercise in poetic equation. It dwelt on the rule of forgiveness as pervading the structure of Islam and of justice among the people as conceived from the outset. COMPASSION‑-----SIGN OF JUSTICE IN ISLAM Some months earlier, it had been my misfortune to read in the news papers of a wholesale condemnation of the system of justice in vogue in Pakistan which had been issued in another country by a Minister of the Government speaking to the Central Legislature of the country. I seem to remember that the worthy speaker used the expression `barbarous' about our judicial system, saying at the same time that he did not know in what form justice was administered in this fair land of ours. There was little excuse for such ignorance. Justice is publicly dispensed in this country as in the country from which the condemnation was issued. The modes of justice are practically the same in both countries. The Codes are very similar. When I read this article on Compassion in the "Pakistan Times", it struck me that it would be a good thing that it should be known generally that these high principles do not exist only in piety or on paper but are in actual operation in our country. I could speak with knowledge on this subject, having been a Judge in Pakistan since the birth of the nation. There is no need, of course, to explain to the people of Pakistan that the justice administered in the ordinary Courts is neither barbarously contrived nor necessarily an instrument of domination any more than in other countries where the procedural Codes have been devised and estab lished by the British in their period of rule. But absence of savagery connotes no standard at all. I could give you case after case in which our Courts have approximated to that degree of compassion which is held up as the sign of justice in Islam. There was for instance a murder case which came before the Supreme Court in East Pakistan, in which the Government had moved a petition for enhancement of a sentence of transportation for life to a sentence of death. The facts were perfectly simple. An innocent Muslim boy had been walking down the street in a town in East Pakistan, when a priest of a Kali temple ran at him and with a single blow of a heavy cutting weapon severed his head from his body and ran with it into the temple as an offering to the goddess. Things of this kind have been happening for a long time in India, and the fact of the victim belonging to a different religion did not particularly furnish a motive for a crime. The High Court had awarded the sentence of trans portation for life believing that the accused had acted in a state of religious frenzy in which he was not wholly responsible for his act. The executive considered that the death sentence was required to meet the case, and they had strong grounds, firstly, in the fact that there was no excuse in law for the crime by way of provocation or otherwise, and secondly, that there' were numerous precedent cases in which sentences of death had been awarded. Here was a case in which the law was fully in support of the death sentence and nothing could be said in favour of the killer which could stand scrutiny in the eye of the Penal Code. But the Supreme Court took the same compassionate view that had moved the High Court. There is such a thing as diminished responsibility when men act through forces which are more powerful than themselves, and it is not always that their minds lack the normal human strength to resist these forces. The lesser sentence was upheld. That was a startling case which has remained in my memory as a remarkable instance of Judges restraining any feelings of anger or revenge in coming to their final decision. It was not that it was a personal concern of the Judges, but as you will understand, the circum stances were such that a very high degree of indignation was likely to be aroused. ANOTHER EXAMPLE There was another case in which the accused had struck a much younger person who had interfered when he was admonishing some youngsters, and had caused his death. The lesser sentence was imposed on the consideration that in Eastern countries a wide disparity of age is itself a source of authority, and that the manner of the interference may well have given offence to the old man to such a degree that he reacted, by way of indignation and chastisement, with too great violence. Many of you may not be aware that in the Criminal Procedure Code which we follow, there is a requirement that when in a capital case, the death sentence is not awarded, a reason should be given. One aspect of the necessity for this provision which has been in the Code for at least 70 years was placed before me in my young days as a Sessions Judge. It was a district where crime was at a high level, and murder cases were common. Naturally, acquittals were in proportion to the total, and it was once mentioned to me by a Canal Officer who bore a name made famous by a renowned British administrator of the period before the Mutiny, that it was thought that my acquittals were too numerous. "What difficulty do you feel," he asked me very kindly, "in imposing sentences of death?" Then he told me that when his forbear was administering a certain section of the old Punjab, wherever he was out in camp there used to be corpses hanging on the trees around the camp. Those were men on whom death sentences had been carried out for capital offences. I said I had little prospect of gaining anything like the fame of his distinguished ancestor and left it at that. JUSTICE OF THE PEOPLE, BY THE PEOPLE, AND FOR THE PEOPLE In truth, the rule of compassion can only be operated by equals among equals. A King's justice may be a protection in times of lawlessness, for those who are submissive and co‑operative, but where the country enjoys self‑rule, nothing will do except that the justice of the country should be a justice of the people, by the people, and for the people. Any deviation from that principle if continued for any length of time in practice, can have no other end but to place domination in the hands of a section of the population over the remainder. I may recall that even the King's justice was mitigated in early Britain by the development of the jury system which was nothing else but the introduction of a principle of compassion. All those familiar with the legal history know how great a part the jury system has played in saving lives from extinction under cruel systems of law, until finally the laws themselves were altered. To‑day, the types of cases falling under the 'description of "capital murder" in England fall within a very few categories, JUSTICE----‑ASSERTION OF PRINCIPLE OF EQUALITY of CITIZENS In truth, the kind of justice, which was described from a religious angle and duly commended in the article I saw, is a concomitant of the develop ment and the assertion of equality within an independent community. There being no outside agency in operation and no section within the community which is interested to dominate through forms of law, , all resolution of clashes between members of the community, occurring in the course of their ordinary human activities must necessarily be resolved on the basis of full comprehension of the position of both parties by the agency , of decision. It is in that operation that compassion enters as the solvent of intricacy, as the healer of wounds, where healing is possible, as the life- giving water applied at the very grass‑roots of democracy. A careful student, looking in the law Reports for cases in which compas sion was the effective, though unacknowledged, rule of decision in the Federal Court of Pakistan, and since 1956, in the Supreme Court, will find that they cover a wide field. I can think of a number of cases in the field of income‑tax, although there you might say that the Judges, being them selves in a bracket where the abstraction is really pinching, may perhaps be guided by personal sentiment. There was however a case of a foreign company, where taxability depended upon a certain interpretation being given regarding the site of its residence at a particular time. The principle involved was one of general application, and it seems that many crores of rupees were involved. That is precisely the kind of case in which, if the words of the statute are capable of being interpreted so as to benefit the national exchequer, Courts in a number of countries have not hesitated to follow that inclination. But the Supreme Court of Pakistan did not allow itself to be guided by that consideration. A taxing statute is not one of those which the Courts of a country ordinarily, by interpretation, assist to apply beyond the minimum scope that the words will carry. It is a rule of compassion applied as between the tax‑payers on one side and the tax‑gatherers on the other. It was applied in this case in favour of an alien, but according to several systems of law, ancient as well as modern, aliens who submit to the authority of the State enjoy many of the rights in law that are assured to members of the community. IN OTHER FIELDS Similar occasions have arisen frequently in two other fields, namely; those of the division of Assets and Liabilities between the two Dominions created at the Partition, and the more numerous category of cases falling within the field of evacuee property. In each of these fields, if purely nationalistic motives had been allowed to prevail, our decisions in a number of cases might conceivably have been different. The field, of course, is one in which the tit‑for‑tat rule could have been expected to apply, but it is also true that there could be no assurance that adherence to strict justice would meet a similar response from the other side. Nevertheless the Court has always preferred to deal with these cases on a basis of equality, bearing in mind the major duty of exercising the judicial conscience untouched by any considerations such as govern the political conscience or the social conscience or the economic conscience. The cynicism which is the distinguishing mark of the political conscience, the condescending and self‑regarding quality of the social conscience, and the acquisitive motivation of the economic conscience have no place in the operation of justice according to the rule of compassion. But there have been occasions when statute has come in the way. I remember such an expropriatory statute passed by a Provincial Legislature, which even barred the jurisdiction of the Supreme Court, as it had gained the approval of the Centre as well. A distinguished English lawyer was imported by the Provincial Government to resist the appeal of the expropriated owner. This lawyer is a prominent figure in the field of liberal and social thought, and I remember that he attempted to put forward a seductive argument that historical evolution inevitably required dissolution of individual rights for the enlargement of the rights of the people. In the face of the bar of jurisdiction, it was not found necessary or possible to probe into this aspect. The matter arose later in another part of the country, in a much wider field, where the inevitability of evolu tion was presented with greater conviction by the fact of general applica tion. JUDGES NOT ABOVE THOSE TO WHOM THEY ADMINISTER JUSTICE We enter there into a wider field of compassion than that in which the challenge to individual rights falls to be judicially evaluated. But equally, that field is covered, with complete competence by the agency of justice, provided it operates at the proper level, that is among the people, and for the people. That which is done in the way of the high principle of charity can never be done from a height. The rule of compas sion is the rule of true charity, in which condescension has as little place as cynicism or self‑advancement. In all humility, and with some confidence, I can say that our Courts have always endeavoured to avoid placing them selves above those to whom they dispense justice. And where our hands have been tied by statute or we have otherwise acted in error, we can only hope, that when we stand at the Bar ourselves, the same rule of forgive ness will apply to us, as is to be the final saving of all humanity. And then, speaking with the utmost humility, I feel confident that we, the Judges in Pakistan, will be able confidently to plead "not guilty" to any charge of barbarism. Nor shall we be held to account for laying a charge of barbarism against others, least of all against a whole system of justice.