Abetment of a thing
A person abets the doing of a thing, who;-
(i)
Instigates any individual
to do that thing; or
(ii) Engages with one or more
other person or persons in any conspiracy for the doing of that thing, if a act
or illicit oversight happens in pursuance of that conspiracy and in order to
the doing of that thing; or
(iii) Intentionally aids, by any
act or unlawful exclusion, the doing of that thing. Section 107
Explanation
(i)
A person who, by willful
distortion, or by willful concealment of a material fact he is bound to
disclose, voluntarily causes or procures, attempts to cause or procure, a thing
to be done, is said to instigate the doing of that thing.
(ii)
whoever, either before or
at the time of the commission of an act, does anything in order to facilitate
the commission of that act, and thereby facilitates the commission thereof, is
said to aid the doing of that act.
Abetment
Abetment can be committed only when there is positive
evidence of either instigation or conspiracy or intentional aid. If none of
theses three elements stated above is available then abetment does not stand
proved. Therefore, mere presence at the scene of offence would not be
sufficient to make out a case of abetment. NLR 1991 Cr. 163(DB)
Instigation
‘Instigation’ shows some sort of advice for the commission
of an act, which if done, would be an offence. It necessarily indicates some
active suggestion or support or stimulation to the commission of the act itself
which constitutes an offence. ‘Advice’ can become ‘instigation’ only if it is
found that it was meant actively to suggest or stimulate the commission of an
offence. Advice per se, or temptation to do a forbidden thing does not amount
to instigation.
Conspiracy
The distinction between the offence of abetment by conspiracy
and the offence of criminal conspiracy, so far as the consent to submit
an offense is concerned lies in this. Unless “agreement” can be prima facie
spelt out no Prima facie case under S.120-B can be said to be made out to
invite second part of S. 107. But for abetment by conspiracy mere agreement is
insufficient. A demonstration or illicit exclusion must happen in pursuance of
the conspiracy and in order to the doing of the thing conspired for.
Intentionally aids by act
If a person joins another in the commission of a crime by
which he is to benefit and which it would not be possible to commit anyway for
his support, he is liable of the commission of the crime. In order that there
may be abetment by intentional aid, the commission of the crime must have been
facilitated by either an act on the part of the abettor or by his illegal
omission. The act may be one which directly assists the commission of the crime
or one which merely affords facilities for its commission. In either case the
person who does such an act is an abettor.
Illegal omission
For proving abetment by illegal omission under section 107
the accused must be shown to have intentionally aided the commission of the
offence by his non-interference. The prosecution must be able to establish that
such illegal omission was likely to have lent support to or to have encouraged
the principal offender to commit the offence in question.
Accessory after the fact
Abetment by aiding or instigating necessarily means some
active suggestion or support or stimulation to the commission of the offence
itself. If the offence had already been completed before anything was done by
the alleged abettor, any subsequent action of his which might, in any way help
the main offender, will not abetment within S.107, being an accessory after the
fact which is no offence under Pakistan Law.
Charge of Abetment
It is open to the prosecution to bring a charge of abetment
generally. The charge will amount to notice to the accused that they have to
meet a case of abetment in one or more of the different ways indicated in
S.107, Penal Code. But a specific charge must be framed for abetment of an
offence under S.114, P.P.C. A general charge of instigating various persons to
commit dacoities is bad. Separate acts of abetment must be distinctly specified.
Abettor
A person abets an offence, who abets either the commission
of an offence, or the commission of an act which would be an offense, if
submitted by an person able by law of committing an offence with the same
intention or knowledge as that of the abettor. Section 108.
Explanation
(i) The abetment of the illegal
omission of an act may amount to an offence although the abettor may not
himself be bound to do that act.
(ii)
To constitute the offence
of abetment it is not necessary that act abetted should be committee, or that
the effect requisite to constitute the offence should be caused.
Abetment is substantive offence
The offence of abetment is a substantive offence. Therefore
the fact that the principal cannot be brought to trial does not prevent a
charge of abetment against the abettor. Even the acquittal of the principal is
no bar to conviction of the abettor.
Abettor and principal may be convicted for separate offences
The fact that his abettors have been found guilty of an
offence of manslaughter only does not prevent the principal offender from being
found guilty of murder, when there is ample evidence to support the finding.
But persons punished as principals cannot also be punished for abetment of the
same offence.
Abetment by act not necessary for commission of offence
An offence of an abetting the making of a false document can
be committed by attesting the document, even if the document does not require
attestation to complete it, if the person who brings this document into
existence intended that it should be attested and that the accused should be
one of the attesters.
Actual knowledge or intention necessary
In order to constitute an abetment, intention is essential.
Persons having no knowledge of the fraud could not have intended to aid the
commission of an offence under section 406, P.P.C. Where the aiding accused
came a little later and were not supposed to be aware of concealment of knife
by the principal accused in his dab from where he took it out, they could not
be blamed for sharing a common intention and to have acted in concert pursuant
to pre-planned scheme with the principal accused in doing away with the
deceased.
Accessory after the act
There can be no abetment of an offence after it is
committed, therefore a person cannot be convicted of abetting an offence of
instituting a false charge solely on the ground that the gave evidence in
support of such charge.
Conclusion
Abetment is rightly declared a substantive offence for the
purpose very aptly defined by;
Terremy Bentham as;
“The discovery of such
preparatory offence with the object of prohibiting them would reduce the level
of the principal crimes committed in consequence to them.”
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