Common intention, a perilous spectrum of criminal jurisprudence
MORE frequently put into practice, the principle of joint liability in relation to section 34 PPC in furtherance of common intention and section 149 PPC in prosecution of common object is extremely perilous provision of law in administration of criminal justice.
Both the terms are conterminous to each other. The intention to further the commission of the crime is, in effect, of essence.
There is no hard and fast criterion for the purposes of fixing the joint responsibility of the act perpetrated by his co-accomplice.
Each and every case depends upon its own distinguishable facts and circumstances. The prosecution is to be put to strict and the highest degree of proof.
It is to be noted that no one with a modicum of prudence would be willing to be convinced that a person may so lightly and easily be burdened with and punished for a criminal act done by the other allegedly in furtherance of his common intention unless there is very strong, clear-cut and incontrovertible proof and indisputable conclusion that if the accused had not shared the meeting of minds with his accomplices to do a criminal act and had also not taken active part in the happening or commission of the offence, the principal accused would not have been so firm and able to commit the offence and the criminal act could have been averted to.
The community of intention cannot be, to a great extent, proved by direct evidence and the motive, pre-concert and pre-planned arrangements and all other surrounding circumstances forming part of totality of prosecution evidence may essentially help as ladders and step in the process of penetrating into mind of the perpetrator to know the fact of the furtherance of common intention.
There is difference of points of view that might have been formed due to different peculiar facts.
There is a view that an offence can take place in furtherance of common intention of all suddenly at the spur of the moment or during the commission of the offence.
In view of above narration, it cannot at all be pitted against the principle that is well settled and the ratio laid down too clear to be glossed over that common motive, concert pursuant to pre-arranged plan, equal preparation and pre-medication are indispensable benchmarks to constitute the furtherance of common intention and to saddle a person with equal treatment for a particular offence actually committed by others.
In order to come to definite inference that the offence was the corollary to the community of design of all, there must be at least so much duration of time between the formation of common intention and actual act.
The provision of section 34 PPC is obviously in itself not a distinct offence but a rule of evidence and therefore, the criminal act must be measurable, observable and done overtly.
In case of sudden flare-up or happening of any criminal act at the spur of moment without furtherance of common intention of all, every one of them may, however, be liable for his own individual act.
It has also consistently been ruled that mere presence without tangible proof of existence of common intention and overt action would not constitute an offence within the hide-bound meaning of section 34 PPC.
Even otherwise when an incident takes place all of a sudden or on immediate reaction, it is extremely uphill task to discover from their acts alone as to whether or not they had any common intention to commit a particular criminal act.
In such an eventuality also, at the most the participant would again be liable for his individual act and as such the rule of constructive liability ceases to operate.
Unlike in case of common object where in the course of achieving the object, an accused is also liable to the criminal act that is even likely to occur in the joint action, but in case of common intention of all, the accused may be held liable to the extent of only his intended action.
It may also, however, be observed that if the act done is sudden or extraneous to the common intention or is done by his other companions in opposition to it, the doctrine of constructive liability as envisaged u/s 34 PPC again ceases to intervene.
There is another exacting aspect that needs to be seriously deliberated upon is that generally in all circumstances, as soon as tally of accused exceeds five, the participants are held constructively liable only u/s 149 PPC and not u/s 34 PPC even if the contained and pointed criminal act is done squarely in furtherance of common intention of all.
Section 34 PPC applies even where the number of the culprits is five, less than five or more than five.
The number of five or more is specific and distinctive only to the unlawful assembly with intent to gain a particular object but the applicability of section 34 PPC is not subject to the number of culprits.
It is also understanding that this principle is applied to meet cases in which it may be difficult to distinguish between the actual acts of the individual member of a party or to prove exactly what part was taken by each one of them in furtherance of the common intention of all.
It may be exceptionally applicable in cases of some peculiar nature but it cannot at all be adopted for general application.
In this milieu, it becomes more imperative to sift the grain from chuff and each member shall be visited with the liability of individual act.
However, this doctrine be put into service with care and caution to secure the inalienable right to life, justice, fair trial and due process.
—The writer, a practising lawyer, is based in Lahore.
