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
(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 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’ 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.
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.
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.
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.
(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.
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.”