P L D 1968 Karachi 853 (PLP)

The Privy Council in the case of Barendra Kumar Ghosh v. King‑Emperor (A I R 1925 P C 1) exhaustively dealt with the constructions of sections 34, 114 and 149 of the Indian Penal Code. Lord Summer observed at page 7: " Section 149, however, is certainly not otiose, for in any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or' more persons having a common object, viz., one of those named in section 141 and then the doing of acts by members of it in prosecution of that object. His Lordships then went on to make the distinction between sections 149 and 34, P. P. C. clearly in these words: " There is difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of partici pation in action which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but section 149 cannot at any rate relegate section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treat ment at all." As to the offence of abetments, His Lordship categorically observed that :‑‑-- " Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart." We were referred to the case of Muhammad Nawaz v. The State (P L D 1967 Lah. 952) decided by the Full Bench of this Court. But the true construction of section 109 was not the question for decision in that case. Their Lordships' of the Full Bench in fact were dealing with the question of the effect of non‑inclusion of section 34, P. P. C. in the Schedule to the Act. Their Lordships observed that: "Section 34 of the Penal Code appearing in Chapter II headed as "General Explanations" which contains definitions and explanations of the terms and expressions used in the Code. It does not create any offence but merely lays down a principle of joint liability in the doing of a criminal act. It is not even a penal provision as it only enunciates the principle of criminal liability which is that "if a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable as if it were done by him alone." It would be seen from the perusal of the judgment in that case that section 109, P. P. C. was not even referred to and therefore it was not a subject‑matter of discussion. The offences of abetment stand totally on a different footing. In the scheme of the Pakistan Penal Code abetments of offences are placed together in a different category in Chapter V. These offences are thus given a separate treatment, they are defined, explained, illustrated and made punishable as separate offences. There can therefore be no room for an argument that an offence under section 109 is not a substantive offence, or that it does not stand by its own force, or that it only enunciates a principle of joint liability of the persons concerned in criminal offences. The difference between the sections 34 and 109 may be noted from the table formulated below: "Section 34 Section 109 A criminal act is done by several persons. The abettor does not take. part in the criminal act; he merely abets it. A criminal act must have been completed; there must be common intention. The act abetted may not be committed (See Expl. 2 to section 108) common inten tion is not necessary. Presence of all accused at the scene of offence is necessary. (Expl. 3 to 5 to section 108). Abettor need not be present at the scene of offence." We may also refer here the case of Rehmatullah Khan and others v. The State (P L D 1965 Pesh. 162) decided by the Full Bench of the Peshawar seat in which it was held that section 109, P. P. C. not being a Schedule offence under the West Pakistan Criminal Law (Amend ment) Act, 1963, the question of guilt or innocence of an accused of that offence cannot be ref erred to the Tribunal under the Act. We are, therefore, clearly of the view that the offence of abetment under section 109 of the Pakistan Penal Code is a substantive offence, and not merely an appendage of the principal offence, and it being not a Schedule offence the question of guilt or innocence of an accused of that offence cannot be referred by the Commissioner for decision to the Tribunal under the Act. The order of the Commissioner dated the 17th April 1967, challenged before us was therefore an order without lawful authority and it must be quashed. The order of the Home Secretary to the Government of West Pakistan dated the 12th August 1967, confirming the unlawful order must automatically fail. The result, therefore, is that ire case against the petitioner shall be deemed to be pending before the Civil Judge and 1st Class Magistrate, Khairpur Mirs, wherefrom it was transferred by the Commissioner, Khairpur Division. It shall proceed forthwith and shall be decided according to law. With these directions the petition is allowed, but in the circumstances we leave the parties to bear their own costs. Petition allowed.