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  #41  
Old Wednesday, June 25, 2014
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===== COMMON INTENTION AND COMMON OBJECT =====
==================================================
COMMON INTENTION
======================
Section 34 of the pakistan penal code deals with
constructive criminality i.e., liability of all for acts done by
one or
more. This section was introduced in order to meet the
cases in which it may be difficult to apportion the liability of
each
member according to his participation in the commission of
the crime . Since it is difficult to distinguish precisely the
part taken by each member of a group, it was thought
necessary to declare all the persons equally liable for the
acts
done. SEction 34 does not create a distinct offence, it only
lays down the principle of joint criminal liability. So it is a
rule
of evidence only and does not create a substantive offence.
The words " furtherance of common intention " have been
the subject of much discussion amongst the lawyers and
conflicting interpretations have been put forth.
One common agreed point has, however, been that
furtherance of commonly design is the condition precedent
for joint
liability under section 34. The words common intention
means unity of purpose or a pre-arranged plan.
INGREDIENTS OF SECTION 34 PPC==
====================================
1. Two or more persons.
2. They must have a common intention to commit an
offence.
3. Participation by all the accused in doing act or acts in
furtherance of that common intention.
COMMON OBJECT:
===============================
Section 149, like section 34, is the other instance of
constructive joint liability. Section 149 creates a specific
offence. It
runs as under:
" 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".
The essence of offence under section 149 of pakistan penal
code is assembly of several persons ( not less than five in
any case ) having one or more of the common objects
mentioned in section 141. Section 149 creates joint liability
of all
members of an unlawful assembly for criminal for criminal
act done by any member in prosecution of the common
object
of the said assembly.
So the essential ingredints of sectin 149, P.P.C are:
1. There must be an unlawful assembly as defined in
section 141 of ppc.
2. Criminal act must be done by member of such assembly.
3. Act done is for prosecution of the common object of the
assembly, or such which was likely to be committed in
prosecution of the common object
4. Members have voluntarily joined the unlawful assembly
and know the common object of the assembly.
DIFFERENCE BETWEEN SECTIONS 34 AND 149 PPC:
==================================================
=====
To a certain extent both sections are overlapping and both
can be invoked against the accused when there is no
difference between the object or intention with which the
offence is committed. But it was pointed out in a case by
privy
council that there is uch difference in the scope and
applicability of section 34 and 149 inspite of their
similarity. Section
149 is wider in its sweep and longer in its reach than
section 34. The actual participation in action is the
essential
element of section 34 but membership of the unlawful
assembly is the leading feature of section 149 PPC. Section
34
merely declares a rule of criminal liability but section 149
creates a specific offence. Common object is different than
common intention as it does not require prior concert and a
common meeting of minds but an unlawful object is
developed when people assembled together. At least two
persons are required to share the common intention under
section 34 but for applicability of section 149 unlawful
assembly must consist of atleast 5 persons.
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  #42  
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CRIMINAL LIABILITY OF AN INTOXICATED PERSON
==================================================
=
Section 85 of Pakistan penal code lays down that nothing is
an offence whis is done by a person who, at the time of
doing it, is by reason of intoxication, incapable of knowing
the nture of act, or that he is doing what is either wrong, or
contrary to law, provided that the thing which intoxicated
him was administered to him without his knowledge or
against his will.
The ingredients of this section are that a person will be
exonerated from liability for an act done while in a state of
intoxication if he at the time of doing it, by reason of
intoxication was:
1. incapable of knowing the nature of the act.
2. That he was doing what was either wrong or contrary to
law.
3. That the thing which intoxicated him was administered to
him without his knowleged or against his will.
Voluntary drunkness is no excuse for the commission of the
crime. But if a man is made drunk through stratagem or the
fraud of others, or through ignorance, or through any other
means against his will, he is excused.
Section 86 of pakistan penal code further says that a person
voluntarily drunk will be deemed to have the same
knowledge and liable for the consequences as he would
have had if he had not intoxicated. The section attributes to
a drunken man the knowledge of a sober man when judging
of his action , unless the thing which intoxicated him was
administered to him without his knowledege or against his
will.
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  #43  
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OFFENCES RELATING TO RELIGION
==================
==================================================
==================
They are provided in section 295 to 298 of pakistan penal
code , which are as follow:
1. Injuring or defiling a place of worship, or any object held
sacred by any class of persons, with intent to insult the
religion of any class of persons. (section 295---
punishment upto two years with or without fine)
2. Deliberate and malicious acts intended to outrage the
religious feelings of any class by insulting its religion or
religious beliefs (section 295-A.... punishment upto three
years)
3. Voluntarily disturbing a religious assembly lawfully
engaged in the performance of religious worship, or
religious ceremonies. ( section 296... punishment upto one
year)
4.Trespassing in any place of worship , or burial place,
offering any indignity to a human corpse, with intent to
wound the feelings or religion of any person. (section
297.... punishment upto one year)
5. Uttering words or making signs with the intention of
wounding the religious feelings of any person . section
298 ... punishment upto one year.
6. Using derogatory remarks in respect of the Holy
Passenger . Section 298-A.... punishment upto three years
or fine or both.
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  #44  
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PLEA OF COMPULSION OR NECESSITY :
=============================================
The excuse of necessity or compulsion as a defence for an
act cannot be pleaded except as provided in Section 94 of
the Pakistan Penal Code. That section lays down that
except murder and offences against the State punishable
with
death, nothing is an offence which is done by a person who
is compelled to do it by threats which, at the time of doing
it,
reasonably cause the apprehension that instant death to
that person will otherwise be the consequence: Provided the
person doing the act did not, of his own accord, or from a
reasonable apprehension of harm to himself short of instant
death, place himself in the situation by which he became
subject to such constraint. This section will not, however,
save
a person who, of his own accord or by reason of a threat of
being beaten, joins a gang of dacoits. But if he is seized by
a
gang of dacoits and forced by threat of instant death to do a
thing which is an offence by law. for example, a smith
compelled to take his tools and to force the door of a house
for the dacoits to enter and plunder it under pain of instant
death, will be entitled to the benefit of this section.
It is thus clear from the above that a person is excused from
the consequences of any act, except murder and offences
against the State punishable with death, done under fear of
instant death ;but fear of hurt or even of grievous hurt is not
a sufficient justification. It has been held that the accused
was not entitled to the protection of Section 94 of the Code
in
the case where the threat of instant death was present at
the beginning or even some time afterwards but did not
continue till the end of the commission of an offence. There
must be the apprehension of force upon the person and fear
of death, and this force and fear must continue to be present
at the time of the act.
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Q. . What is an act excusable on the ground of its being
done by accident or misfortune ? Cite illustrations.
Ans. ACCIDENT IN DOING A LAWFUL ACT :
==============================================
Section 80 provides that nothing is an offence which is
done by accident or misfortune, and without any criminal
intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and
caution. A is at work with a hatchet; the head files off and
kills a man who is standing by. Here, if there was no want
of proper caution on the part of A, his act is excusable and
not an offence. The essential ingredients to constitute a
justifiable plea ofaccident or misfortune are :
(1) that the act was done by accident or misfortune ;
(2) that it was done without any criminal intention ;
(3) that it was the doing of a lawful act ;
(4) in a lawful manner;
(5) by lawful means; and
(6) with proper care and caution.
If has been held that where two persons went out to shoot
animals and agreed to take up certain position in the jungle
and lie in wait, but after a while the accused heard a rustle
and believing it to be an animal fired in that direction but
the shot killed his companion, the Case was held to be one
of pure accident, although the gun used was an unlicensed
one. But where the accused was engaged in a fight in which
a woman intervened, whereupon the accused aimed a blow
at her, but it accidentally killed the infant she was carrying,
it was held that the. case was not protected by the
provisions of Section 80 as the assault on the woman was a
wrongful act.
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ATTEMPTS TO COMMIT OFFENCES :
============================================
Section 511, lays down that "whoever attempts to commit
an offence punishable by this Code with imprisonment for
life
or imprisonment, or to cause such an offence to be
committed, and in such attempt does any act towards the
commission of the offence, shall, where no express
provision is made by this Code for the punishment of such
attempt,
be punished with imprisonment of any description provided
for the offence, for a term which may extend to one-half of
the imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that offence,
with such fine as provided for the offence, or with both.
The points which require proof under the above section are:
(1) that the accused attempted to commit some offence
punishable with imprisonment for life or imprisonment; or
that he
attempted to cause such an offence to be committed ;
(2) that in attempting to do the above act he did some act
towards the commission of the offence.
ILLUSTRATIONS :
======================
(a) A makes an attempt to steal some jewels by breaking
open a box and finds after so opening the box, that there is
no
jewel in it. He has done an act towards the commission of
theft, and therefore is guilty under the above section.
(b) A makes an attempt to pick the pocket of Z by thrusting
his hand into Z's pocket. A fails in the attempt in
consequence z's having nothing in his pocket. A is guilty of
an offence under the above section.
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+++++++ RIGHT OF PRIVATE DEFENCE +++++++++:
==================================================
======
Subject to, certain limitations the law gives a right to every
person to defend his body or property, or the body or
property of another person against unlawful aggression. He
may protect his right by his own force or prevent it from
being violated. It is a right inherent in a man. But the kind
and amount of force is minutely regulated by law. This use
of force to protect one's property and person is called the
right of private defence.
RIGHT OF PRIVATE DEFENCE OF BODY :
================================================
Section 97 lays down that every person has a right, subject
to the restrictions contained ih Section 99, to defend his
own body and the body of any other person, against any
offence affecting the human body. Section 102 of the Code
provides that the right of private defence of the body
commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to
commit the offence the offence though, the offence may not
have been committed; and it commences as long as such
apprehension of danger to the body continues. It is clear
from the wording of the section that the right commences
and continues as long as danger to body lasts. The extent
to which the exercise of the right will be justified will
depend not on the actual danger but on whether there was
reasonable apprehension of such danger. There must be an
attempt or threat, and consequent thereon an apprehension
of danger, but it should not be a mere idle threat. There
must be reasonable ground for the apprehension.
The right of private defence of the body extends to the
voluntary causing of death or of any other harm to the
assailant if the offence occasioning the exercise of the right
be of any of the following descriptions, viz.,
(i) an assault" causing reasonable apprehension of death-
even injury to innocent persons in private defence against
an assault is excusable,
(ii) assault causing reasonable apprehension of grievous
hurt;.
(iii) assault with the intention of committing rape, gratifying
unnatural lust, kidnapping or abducting or wrongfully
confining a person causing reasonable apprehension that he
will not be able to have recourse to the public authorities for
his release.
For the purpose of exercising the right of private defence
physical or mental incapacity of the person against whom
the right is exercised is no bar.There is, however, no right
of private defence:
(1) against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or
attempted to be done, by a public servant or by the direction
of a public servant acting in good faith under colour of his
office though that direction may not be strictly justifiable by
law;
(2) in cases in which there is time to have recourse to the
protection of the public authorities ;
(3) nor does the right of private defence extend to the
inflicting of more harm than it is necessary to inflict for the
purpose of defence. (S. 99).The measure of defence must
bear proportion to the quantum of force used by the attacker
and which it is necessary to repeL Thus where the accused
who was attacked by another with a Kirpan succeeded in
disarming his opponent by taking away hls weapon and
showered blows after blows including the serious ones on
the chest, it was held that he must be held to have exceeded
the right of self defence and was guilty under section 304,
part 1 of pakistan penal code.
An act done in exercise of the right of private defence is not
an offence and does not, therefore, give rise to any right of
private defence in return. The right is not available in
respect of anticipated action. Defensive action is justified
only when positive overt act of damage or harm is set in
motion. The law does not confer a right of self-defence on a
man who goes and seeks an attack on himself by his own
threatened attack on another' -an'attack which was likely to
end in the death of the other.The right of self-defence
conferred- by the law or Preserved by the law for an
individual is a very narrow and circumscribed right and can
be taken advantage of only when the circumstances fully
justify the exercise of such a right.
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