ABETMENT-PAKISTAN PENAL CODE 1860

Abetment defined:

107. Abetment of a thing:

Secondly: Engages with one or more other person or, persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy, And in order
to the doing of that thing; or

Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1: A person who, by willful misrepresentation, or by willful concealment of a

Illustration
A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B,
knowing that fact and also that C is not Z, willfully presents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2: Whoever, either prior to or at the time of 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.

108. Abettor:
A person abets an offence, who abets either the commission of an offence, or the commission of
an act which would be an offence, if committed by a person capable by law of committing an
offence with the same Intention or knowledge as that of the abettor.

Explanation 1: 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.

Explanation 2: To constitute the offence of abetment it is not necessary that the act abetted
should be committed, or that the effect requisite to constitute the offence should be caused.

Illustrations
(a) A instigates 8 to murder C, B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the
wound. A is guilty of instigating B to commit murder.
Explanation 3: It is not necessary that the person abetted should be capable by law of committing
an offence, or that he should have the same guilty intention or knowledge as that of the abettor or
any guilty intention or knowledge.

Illustrations
(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an
offence, if committed by a person capable by law of committing an offence, and having the same
intention as A. Here A whether the act be committed or not, is guilty of abetting an offence.

Explanation 4: The abetment of an offence being an offence, the abetment of such an abetment is
also an offence.

Illustration
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and commits
that offence in consequence of B's instigation. B is liable to be punished for his offence with the
punishment for murder; and as A instigated B to commit the offence, A is also liable to the same
punishment.

Explanation 5: It is not necessary to the commission of the offence of abetment by conspiracy

Illustration
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then
explains the plan to C mentioning that a third person to administer the poison, but without
mentioning A's name. C agrees to procure the poison and procures and delivers it to B for the
purpose of its being used in the manner explained. A administer the poison; Z dies in
consequence. Here, though A and C have not conspired together, yet C has been engaged in the
conspiracy in pursuance of which Z has been murdered. C has, therefore, committed the offence
defined in this section and is liable to the punishment for murder.
109. Punishment of abetment if the Act abetted committed In consequence and where no
express provision is made for its punishment:
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment,
and no express provision is made by this Code, for the punishment of such abetment, be
punished with the punishment provided for the offence:

Provided that, except in case of Ikrah-i-Tam, the, abettor of an offence referred to in Chapter
XVI shall be liable to punishment of ta'zir specified for such offence including death.

Explanation: An act or offence is said-to be committed in consequence of abetment, when it is

Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favor in the exercise
of B's official functions. B accepts the bribe. A has abetted the offence defined in Section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation commits that
offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

LEADING CASE ON ABETMENT IN CONSTITUTIONAL HISTORY OF PAKISTAN

ZULFIQAR ALI BHUTTO AND OTHER VS THE STATE

The Trial of Zulfikar Ali Bhutto

Zulfikar Ali Bhutto the founder of the Pakistan Peoples Party (PPP), the largest and the most
influential political party in Pakistan had also served as the President of Pakistan from 1971 to
1973 and as Prime Minister from 1973 to 1977. Educated at the University of California at
Berkeley in the United States and University of Oxford in the United Kingdom, he was executed
in 1979 by the Supreme Court of Pakistan for authorizing the murder of a political opponent
Nawab Mohammed Ahmed Qasuri, a move that was taken under the directives of General
Muhammad Zia-ul-Haq.

After General Zia declared Martial Law in the country on the 5th July 1977, Bhutto and
members of his cabinet were arrested by troops of General Zia. Under martial law Pakistan was
under the temporary rule of military authorities. The constitution was suspended all assemblies
were dissolved civil rights also stood suspended the normal activities of civil court were
restricted. In a way there was no Rule of Law in Pakistan. But Zia promised that elections would
take place in October. The validity of martial law was challenged in Zulfiqar Ali Bhutto v. State ,
the Court on 10th November 1977 unanimously validated imposition of martial law over the
country under the “doctrine of necessity”.

The court held “The reason underlying such a view obviously is that once an extra-Constitutional
action or intervention is validated on the ground of State or civil necessity, then, as a logical
corollary it follows that the new Regime or Administration must be permitted, in the public
interest, not only to run the day-to-day affairs of the country, but also to work towards the
achievement of the objectives on the basis of which its intervention has earned validation.

In other words, if it can be shown that the impugned action reasonably falls within one or the
other of the enumerated categories, then it must be construed as being necessary and thus held
valid under the law of necessity2.” Thus the imposition of Martial Law, therefore, stands
validated on the doctrine of necessity. Bhutto was later released on July 29.

Bhutto was arrested again on 3rd September 1977 on charges of “conspiracy to murder” under
Chapter XVI of Pakistan Penal Code 1860, for authorizing the murder of a political opponent
who was a 35-year-old politician by the name of Nawab Mohammed Ahmed Qasuri, in March
1974. It was alleged that Bhuto had targeted an assault on Nawab Mohammed’s car on 11th
November 1974. Bhutto was released within 10 days after his arrest on 13th September 1977
after, Justice K.M.A. Samdani of the Lahore High Court, found the evidence “contradictory and
incomplete”. Justice Samdani had to pay for this; he was immediately removed from the court
and placed at the disposal of the law ministry. Fearing another arrest, Bhutto named his wife,
Nusrat, the president of the Pakistan People's Party.

Three days later on 17th September 1977 General Zia arrested Bhutto again with other number
and leaders of PPP on the same charges, this time under “martial law”, and moreover Bhutto was
disqualified them from contesting in elections. Bhutto’s trial began on October 24th October
1977. Bhutto was held in detention for a month. Zia pledged that new elections would be held
within 90 days but he kept postponing the elections time again.

Bhutto was tried for Qatl-e-Amd (murder) under Section 300 of The Pakistan Penal Code which
reads as “Qatl-e-Amd: Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely
to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all
probability cause death, causes the death of such person, is said to commit qatl-e-amd.”, for
which the punishment mentioned under Section 302 are:
302 (a) punished with death as qisas.

302 (b) punished with death or imprisonment for life as ta'zir having regard to the facts and
circumstances of the case, if the proof in either of the forms specified in Section 304 is not
available.

302 (c) punished with imprisonment of either description for a term which may extend to twenty-
five years, where according to the injunctions of Islam the punishment of qisas is not applicable.

Charge of Abetment:

Bhutto was also tried under Section 109 of the Pakistan Penal Code which reads as “Punishment
of abetment if the Act abetted committed In consequence and where no express provision is
made for its punishment: Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code, for the punishment
of such abetment, be punished with the punishment provided for the offence”.

Masood Mahmood, the Director General of the Federal Investigation Agency, testified against
Bhutto. In his testimony, he claimed Bhutto had ordered Kasuri’s assassination and that four
members of the Federal Investigation Agency had organized the ambush on Bhutto's orders. The
four alleged assassins were arrested and later confessed. They were brought into court as “co-
accused”. Bhutto’s defense challenged the prosecution. During the defense's cross-examination
of witnesses, the bench often interrupted questioning.

When Bhutto began his testimony on 25th January 1978, Chief Justice Maulvi Mustaq closed the
courtroom to all observers. Bhutto demanded a retrial, accusing the Chief Justice of biasness.
The court refused his demand. Bhutto was sentenced under Section 302 (a), when the Court
found that the former President and Prime Minister was guilty under Section 300. The reason
given by the Hon’ble Court was that, from the evidence produced before the Court it was beyond
all reasonable doubt that Bhutto was the mastermind behind the murder of his political rival. The
Court also pointed out that the murder was not a normal murder, the sole purpose of the murder
was to remove his political rival, and moreover the murder was a pre-planned murder. The Court
also added that such a murder not only defeated political ethics but also the defeated
constitutionalism.

On 18th March 1978, Bhutto was declared guilty of murder and sentenced to death. Bhutto was
transferred to a cell in Rawalpindi central jail and his family appealed on his behalf, the hearing
commenced in May before the Supreme Court. The matter was placed before a bench comprising
of nine Judges, consisting of Chief Justice Anwar ul Haq, Justice Muhammad Akram, Justice
Dorab Patel, Justice Abdul Haleem, Justice Nasim Hasan Shah, Justice Ghulam Safdar Shah,
Justice Karam Elahi Chauhan, Justice Waheedudin Ahmad and Justice Qaisar Khan. Chief
Justice S. Anwarul Haq who was close to Zia, and had also served as Acting President when Zia
was out, adjourned the court until the end of July 1978 because five of the nine judges were
willing to overrule the Lahore verdict. The reason behind adjourning the matter was Justice
Qaisar Khan among the five judges who were willing to overrule the Lahore verdict would retire
very soon and thereafter General Zia would appoint some of his own men as the Judge.

During the hearing, Justice Qaisar Khan got retired and Justice Waheedudin Ahmad who was
also against the Lahore verdict fell ill. Still today there is a lot of controversy whether Justice
Waheedudin was genuinely ill or whether he was asked by General Zia not to preside over the
matter, as he was against the Lahore verdict. The remaining seven judges heard the case. The
expected majority was reduced to minority and the decision taken by the Lahore High Court was
upheld. Had the original Bench of nine judges been maintained, the verdict could well have been
5-4 in Bhutto's favor.

The appeal was completed on 23rd December 1978. On February 6, 1979, the Supreme Court
issued a guilty verdict; a decision reached by a 4: 3. Chief Justice Anwar-ul-Haq in his eight-
hundred pages judgment dismissed all allegations of errors and illegalities of the Lahore High
Court’s trial as totally irrelevant to the verdict and confirmed the death sentence. The Bhutto
family had seven days in which to file a review petition. The Supreme Court granted a stay of
execution while studying the petition.

Death sentence:

On 24th March 1979 the Supreme Court dismissed the appeal. Zia-ul-Haq who was already
calling the former President-Prime Minister a murderer while the case was still under trial,
dismissed hundreds of clemency appeals from all the heads of the country and ordered for
Bhutto’s execution. Zia-ul-Haq's decision was motivated by political considerations and was not
the action of an impartial head of state. Bhutto was hanged at Central jail, Rawalpindi, on 4th
April, 1979, and was buried in the village cemetery at Garhi Khuda Baksh.

Conclusion:

The Judgment said that this was an unprecedented trial involving a former head of the
Government and for this reason the proceedings before the trial Bench were of a particularly
difficult and taxing nature. “Unfortunately the task of the Bench was not made any the easier by
certain attitudes adopted by appellant Zulfikar Ali Bhutto at various stages of the trial. In this
Court, major part of the arguments addressed by the defence were devoted to demonstrating that
the trial had not been held fairly, and that it suffered from a large number of procedural
illegalities, which went to the root of the matter, vitiating the whole trial, and the convictions and
sentences recorded as a result thereof. My examination of these submissions, ranging over
almost the entire field of Criminal Procedure, has led me to the conclusion that by and large the
trial was held substantially in accordance with the provisions of the Criminal Procedure Code
and that any omissions, errors or irregularities or even illegalities that have crept in, were of such
a nature as did not vitiate the trial, and were certainly curable under the provisions of section 537
of the Criminal Procedure Code as it now stands in its amended form since 1972,” it was
observed.

With regard to holding the proceeding of the trial Court in camera the judgment observed that it
was an essential principle of administration of justice that it must not only be done but should
also appear to have been done. This necessarily carried with it the right to an open trial in full
gaze of the public including the Press. But this rule was not rigid and inflexible and must not be
pressed to its breaking point in defeating the very ends of justice. It admitted of exceptions and
cases might arose whereby following this rule for an open trial justice might itself be defeated.
There was no dearth of cases in which the very requirement of the administration of justice
demanded that the trial be held in private or in camera as an open trial was likely to result in the
stultification of justice. In this category were included cases within the parental jurisdiction of
court for the safeguard of the interest of the ward of lunatic. However each case depended on its
own facts.

Hostile Attitude
The court observed: “It cannot be denied that in the trial Court a number of applications were
filed from time to time in which unfortunately scandalous and scurrilous allegations were made
mostly against the present Chief Justice, who headed the trial Bench constituted for the trial of
this case in the Lahore High Court. In the course of the hearing in this appeal before us also those
allegations were repeated on behalf of the appellant to contend that the entire trial stood vitiated
because of bias in the learned Chief Justice. The blasphemous allegations attributing bias and
motive, made in the face of the Judge of Superior Court constitute one of the worst forms of
contempt, and these were repeated with impunity in this case to defame the Judge and the Court,
with scant regard for the dignity of the law and its enforcing agency, viz., the Court. In the
course of this trial the appellant, who was no less a person than the former President and Prime
Minister of the country, appears to have adopted an openly hostile attitude in Court and became
defiant towards the end, and it became all the more arduous for the Court to conduct the trial. He
appears to have further developed a strategy, and started indulging in vilification and insults
towards the Court and wanted publicity for it, without caring for his own defence in the case.
Indeed the unfortunate situation thus created became all the more embarrassing to control at the
trial.

The Court further observed: “It appears, therefore, that from 25th of January. 1978, onwards the
Court had a genuine and reasonable apprehension that the appellant was out to further indulge in
scurrilous and scandalous allegation against it and wanted publicity for it. This was likely to
result in undermining the dignity of the High Court and shake the confidence of the people in it.
In these circumstances the Court was left with no alternative but to hold further proceedings in
camera in the larger interest of the administration of justice; and this it had power to do in the
exercise of the discretion vested in it under the Proviso to section 352 of the Code.

Appellant Zulfikar Ali Bhutto did not produce any evidence in defence. Most of his own
examination as an accused under section 342 Cr. P.C. was also conducted in open Court. In these
circumstances, I am satisfied that the alleged irregularity, if any, in the mode of the trial by
holding it partly in camera has not in fact occasioned any failure of justice of prejudice to the
appellant in his trial or defence. The objection is thus without any force and is hereby repelled.”

The Court continued: “As far as the proceedings conducted in open Court are concerned, the
appellant can have no grievance if they were reported in the Press or otherwise. It seems to me,
however, that publicity ought not to have been given to the statements made by the other co-
accused during the time when the proceedings were being held in camera. It is possible, as
suggested by the learned Special Public Prosecutor, that those statements were allowed to be
published for the reason that the camera proceedings had not been necessitated on account of
anything done or intended to be done by the co-accused. Whatever the reason, it would have
been better to avoid even the publication of these statements made by the co-accused during
camera proceedings does not in any manner, detract from the necessity which was clearly made
out for excluding the public from this stage of the trial, once appellant Zulfikar Ali Bhutto had
notified the Court of his intention to repeat the allegations he had already made and publicized in
successive petitions against the Presiding Judge of the trial Bench.

The Supreme Court laid down the law on a number of provisions of the Criminal Procedure
Code and the Pakistan Penal Code. Interpretation of section 10 of the Evidence Act with regard
to admissibility of the statements of co-conspirators, the use of section 10 with regard to
confessions and statements made under section 342 Cr. P.C. by the accused, the requirements 0!
section 347 and 164 Cr. P.C. regarding approvers and their statements, the application and scope
of section 540-A of the Cr. P.C. in regard to conducting proceedings in the absence of the
accused and the failure of the High Court to pass a formal order under this section. The Court
also dealt with the legal position when statements of certain witnesses made to the police were
not provided to the defence. The admissibility of the Log Book of the jeep involved in the crime
under section 35 of the Evidence Act, the fact of non-production of certain witnesses by the
prosecution, the hearing of miscellaneous applications in chambers, the principles governing the
appraisal of approvers’ evidence, the relevance of motive in conspiracy cases, corroboration and
credibility of approvers’ statements, and leading of evidence regarding subsequent conduct of the
accused were some of the propositions on which authoritative pronouncements were given.
Another point decided by the court was the exact nature of the position of an accomplice. And
then the court considered the definition of conspiracy and the nature of conspiratorial agreement,
the mode of proof of conspiracy and the application of section 111 read with section 301 of the
PPC. The court also discussed in the judgment the immunity available under section 22 of the
Federal Security Force Act of 1973, to the personnel of the force.

Hearsay
In his dissenting judgment spread over 441 pages Mr. Justice G. Safdar Shah expressed the view
that certain statements of Masood Mahmood were in the nature of hearsay and were not
admissible in evidence. Secondly this approver was not a reliable witness and those who were
supporting him were witnesses which fell in the category of accomplices. One accomplice could
not support another accomplice. He was of the view that the case had not been proved to the hilt
by the prosecution. The evidence of the prosecution witnesses was, according to the judge,
unnatural, improbable and untrue and was made up of significant and prominent improvements
made by them during their evidence in court.

The Judge expressed the view that the prosecution had failed to prove the existence of a criminal
conspiracy between Zulfikar Ali Bhutto and Masood Mahmood and therefore no evidence of it
could be brought under Section l0 of Evidence Act. The Judge said that the prosecution had
failed to prove the case against Bhutto and Mian Abbas and the conviction against them should
be set aside.

The case of Ghulam Mustafa was different because he was not at the site.

An independent Judgment was given by Mr. Justice Dorab Patel who disagreed with the majority
view.

According to the Judge, Masood Mahmood was not a reliable witness and his evidence required
stronger corroboration than was needed in the usual sort of murder case based on the evidence of
an approval. The Judge was of the view that conspiracy between Bhutto and Masood Mahmood
had not been proved. The second approver Ghulam Hussain was a thorough dishonest witness.
His evidence was nothing more than hearsay upon hearsay.

The corroboration of Masood Mahmood’s statement by Saeed Ahmed Khan was of no avail to
the prosecution. The Judge was not satisfied with regard to the prosecution version that bullets
had fallen at four places fired by two men. It was held by the Judge that the High Court had erred
in proceeding with the trial in the absence of Z. A. Bhutto.

Mr. Justice Mohammad Haleem wrote a five-page note agreeing with Mr. Justice G. Sardar
Shah. He also expressed the view that the case against Bhutto and Mian Abbas had not been
proved but since the other appellants had confessed .the crime there was no doubt with regard to
their guilt.

For the millions of Pakistani’s the trial of Bhutto and his execution stands as a judicial murder
committed by the Supreme Court of Pakistan.