P L D 1963 Supreme Court 737 (PLP)

S. A. RAHMAN, J.‑-This order will deal with Criminal Appeals Nos. 47 and 48 of 1963 sent from Jail by Ahmad son of Murad and Noora son of Ahmad. The two appellants, along with five others, were tried under sections 395 and 397, P. P. C. by a Magistrate, 1st Class, with section 30 powers, at Lyallpur. Out of the accused persons, it appears, Noora son of Rahman was sentenced to death in some other case and consequently the proceedings against him in the present case were stopped. Eventually, Sadoo, out of the accused was found guilty under section 412, P. P. C. only and sentenced to two years' rigorous imprisonment, but the remaining accused persons were convicted and sentenced under sections 395/397, P. P. C., to four years' rigorous imprisonment each. A reference was made to the High Court of West Pakistan by the Additional District Magistrate, Lyallpur, under section 438, Criminal Procedure Code, recommending that the sentences of the convicts be enhanced to seven years' rigorous imprisonment each as that was the minimum legal sentence where the con?viction was under section 395, P. P. C. read with section 397, P. P. C. This recommendation was accepted by a learned Single Judge of the High Court on the 28th September 1959 and the convicts sentences were enhanced to seven years' rigorous imprisonment each. It was not brought to the notice of the learned Single Judge that in the meantime four of the convicts, namely, Sadoo, Chena, Noora son of Amir and Amir son of Mahi, had appealed to the Sessions Court and by order dated the 28th of March 1958, the learned Sessions Judge, Lyallpur, had allowed their appeals and set aside their convictions and sentences. The mistake was apparently detected later in the High Court and a formal order regularizing the position was passed so as to make it clear that the enhancement of sentences would be only effective in the case of Ahmad son of Murad and Noora son of Ahmad, who had not appealed to the Sessions Court and that there was no question of enhancing the sentences of the other accused persons who had been acquitted in the case by the learned Sessions Judge. The prosecution case was that a dacoity was committed at Chah Baqarwala in the house of Gahra and Baqar, P. Ws., situate within the area of Chak No. 609 G. B. on the night between the 30th and 31st of July 1955. Six armed persons are said to have invaded the house of Baqar. They woke up Gahra, his father Shahamand and one of his brothers, who were sleeping outside the house. They posed as police men and charged the inmates of the house with having harboured dacoits, Taking them inside the ihata they tied their hands and feet with ropes. Thereafter, they woke up Baqar, the grandfather of Gahra P. W. and Mst. Fatima, wife of Baqar. The hands of Baqar were similarly tied up and Fatima was ordered to surrender the keys of the house. She had to ultimately give up the keys after a preliminary refusal when she was subjected to violence. The culprits took possession of some cash and large number of ornaments together with a gun from the house. Gahra realized that these were no police‑men but, a gang of dacoits. lie managed to crawl away and escape. After informing the people in the village he proceeded to Police Station Bahlak, some 2 1/4 miles away and lodged the first information report with the Police, at about 2‑30 a.m. Before the Police arrived, however, the culprits had escaped with the booty. There is some evidence on the record to link the appellants with the alleged dacoity. As the appellants had never appealed against their convictions to the Sessions Judge and the evidence on which their convictions rest was accepted by the Courts below as reliable, we see no ground to review that evidence in this Court. The only question that arises for consideration is whether there was justification for enhancement or the sentences of these two appellants in revision, having regard to the provisions of section 397, P. P. C. We have been taken through the evidence on record for that purpose, by the learned Additional Advocate‑General, West Pakistan. The evidence shows that one of the dacoits carried a revolver and a sword and the rest were armed with guns. The two appellants apparently fell into the second category as the evidence shows. However, it is not specified in the evidence that these two culprits had actually used the guns in the course of the incident. Section 397, P. P. C. provides that if at the time of committing robbery or dacoity the offender "uses any deadly weapon" or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. The point calling for determination is whether the mere carrying of dangerous weapons like guns for the commission of a dacoity would attract the provisions of this section or not. The learned Additional Advocate‑General invited our atten?tion in this connection to a single Bench decision of the Lahore High Court reported as Sheroo v. Crown (P L D 1950 Lah. 269) in which the view was expressed that the word `uses' occurring in section 397, P. P. C. should receive a broad connotation consistently with the provisions of section 398, P. P. C, and a person who carries a deadly weapon while committing a dacoity, should be regarded as within the mischief of section 391, P. P. C. although he may not have brought this weapon into play during the occurrence. Section 398, P. P. C. reads as follows :‑ "398. If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years." It would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a con?viction, he would receive a minimum sentence of seven years' rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. and we are disposed to agree with the view expressed in the case cited that the word `uses' occurring in section 397, P. P. C. should be construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery. The sentences of the appellants, therefore, are not open to any legal exception and we dismiss the appeals. K. B. A.?????????????????????????????????????????????????????????????????????? ?????????? Appeals dismissed.