Derivative Liability in Criminal Law

Principle of Common Intention in

Pakistan Penal Code

Prof. Tasneem Kausar

Pakistan College of Law-2023
 Criminal law as law of
personal liability
Concept of
Vicarious liability in civil
Derivative law
Liability
Basis of derivative
liability in criminal law
 As a basis of offences

Derivative • Chapter 5 PPC: Abetment

• Chapter 6 PPC: Criminal Conspiracy

Liability in As a basis of criminal liability principles

PPC • Sec 34: Principle of common intention

• Sec 149: Principle of common object
Derivative criminal liability principles: Sec 34 & 149

• They are rules of evidence and does not create a substantive offence.
• They are for cases where it is difficult to distinguish between the acts of
the individual members of a party/unlawful assembly, or to prove exactly
what part was taken by each of them.
• It means when more than one person do a thing with common intention or
for common object, it is just the same as if each of them has done it
individually.
• The reason why all are deemed guilty in such cases is that the presence of
accomplices gives encouragement, support and protection to the person
actually committing an act.
 34. Acts done by several persons in
furtherance of common intention:
Sec 34:
Principle of When a criminal act is done by several
Common persons, in furtherance of the
intention common intention of all, each such
person is liable for that act in the
same manner as if it were done by
him alone.
Elements of Crime

• Actus Reus
• Actus non facit reum nisi mens sit rea

There can be no crime without a guilty mind

Two components of crime
Actus reus – Guilty conduct
Mens rea – Guilty mind
• Please note that PPC does not mention these
expressions anywhere in the Code, however they
are inbuilt in the scheme of the sections.
Mens Rea in Pakistan Penal Code
• No mention made, but it is incorporated in two ways:

A- When mentioned in the definition of offence:

1. Forms of Mens Rea: Intention, Knowledge, Recklessness, Negligence

2. Dishonesty and Fraudulently: mens rea specific to property offences only
3. Common expressions denoting Mens rea included in the definition of the offence
(‘dishonestly’, ’fraudulently’, ‘voluntarily’, ‘intentionally’, rashly, recklessly, wantonly,
‘knowingly’)

B- When the definition does not include mens rea, it is then a strict liability offence.
Section 378 PPC: THEFT

Whoever, intending to take dishonestly any movable property out of the possession
of any person without that person's consent, moves that property in order to such
taking, is said to commit theft.

• Actus Reus Elements of Sec 378

• D moves (with mens rea)
• movable property
• out of the possession of any person
• without that person's consent

• Mens Rea Elements of Sec 378

• Intention to take dishonestly
• Moving of that property in order to such taking (purpose of moving)
Elements of Sec 34

• Criminal Act
• Done by several persons
• In furtherance of common intention

. Common Intention:- The words “in furtherance of the common intention of all” were added to
section 34 after words ‘persons’ in 1870 the idea for which, possibly, was derived from the
following passage of the Privy Council’s judgment:

“Where parties go with a common purpose to execute a common intention, each and everyone
becomes responsible for the acts of each and every other in execution and furtherance of their
common purpose, as the purpose is common so must be the responsibility.”
[Ref. Ganesh Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45]
 It is not ‘offence’ as in sec 40 of PPC

Criminal Act Barendra Kumar 1925

Cr. act refers to “the unity of criminal
behaviour’ that results in an outcome for
which an individual would be punished if
he had done it alone.
 When does an intention become ‘a common intention’?

Various meanings have been given to ‘common intention’ over the years:

•The expression ‘common intention’ means unity of purpose or a pre-arranged plan;

•Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the
persons constituting the group.

•Pre-arranged plan means prior concert or prior meeting of minds. Criminal act must be done in concert
pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in
point of time.

•Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused
were seen at the spot but then they committed criminal acts separately could not be held sufficient to infer
common intention.
· However, common intention may develop on the spot as between a number of persons and this has to be
inferred from the act and conduct of the accused, and facts and circumstances of the case
 One Key Rule for Sec 34’s application

Presence at the scene of occurrence

The participation in a criminal act of a group is a condition precedent in order to fix joint liability and
there must be some overt act indicative of a common intention to commit an offence.

The law requires that the accused must be present on the spot during the occurrence of the crime and
take part in its commission; it is enough if he is present somewhere nearby.

The Supreme Court has held in various cases that it is the essence of the section that the person must
be physically present at the actual commission of the crime. He need not be present in the actual room;
he can for instance, stand guard by a gate outside ready to warn his companions about any approach
of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically
present at the scene of the occurrence and must actually participate in the commission of the offence
some way or other at the time crime is actually being committed.
 Barendra Kumar Ghosh v. King Emperor- AIR 1925 PC 1
[Shankari Tola Post Office Murder Case]

• FACTS:In this case several persons appeared before the sub-postmaster who was counting the
money on the table and demanded the money. In the meantime, they opened fire killed the sub-
postmaster and ran away without taking any money. Barendra Kumar was, however, caught
with a pistol in his hand and was handed over to the police.
The accused was tried under sections 302/34 as according to the prosecution he was
one of the three men who fired at the sub-postmaster. The accused denied his charge on the
ground that he was simply standing outside and had not fired at the deceased. The trial court,
on being satisfied that the sub-postmaster was killed in furtherance of the common intention of
all, convicted the accused even if he had not fired the fatal shot.

Privy Council agreed with the findings of the trial court and held the accused guilty of murder. Giving
his judgment LORD SUMNER quoting a line from Milton’s famous poem, “ON HIS BLINDNESS” said,
“even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as
in other things “they also serve who only stand and wait”….. Section 34 deals with doing of separate act,
similar or diverse by several persons; if all are done in furtherance of a common intention, each
person is liable for the result of them all as if he had done them himself”.
 Contrary Opinion

• PP v Gerardine Andrew 1998 (Singapore)

• Sabarudin bin Non v PP 2005
• In our judgment, presence in every case is not necessary for s 34 to apply. In our judgment, s 34 should be
interpreted having regard to modern technological advances. The early decisions on the section, admittedly
by the Privy Council, that held presence to be essential for s 34 to bite were handed down at a time when
modes of communication were not as advanced as today. It would, in our judgment, be a perversion of
justice if we are required to cling on to an interpretation of the section made at a time when science was at a
very early stage of development.
• It is undoubtedly true that modern science has reached the stage where assistance can be easily given to the
perpetrating of an offence from afar. The old view, that presence is a requirement for finding participation,
may lead to injustice in certain scenarios.
• Problem issues