P (PLP)

JUDGMENT.‑Sher Ali alias Sheru, Faqir Muhammad alias Faqiria, Suba and Barkat, have been sentenced to seven years' rigorous imprisonment each under section 395/397 of the Pakistan Penal Code by Mr. Riaz‑ul‑Haq, Magistrate with section 30 powers, Gujranwala. They have preferred a joint appeal against their convictions and sentences. The appellants are said to have committed a dacoity along with two or three other persons at the house of one Diwan Chand in village Gulloke in the Gujranwala district on the night of the 27th April 1946. The culprits were armed with guns, kirpans, a takwa and a pointed iron rod. The inmates of the house were terrorized into submission and the whole house ransacked and ornaments and clothing removed therefrom. The two gunmen out of the dacoits had stood on the roof and fired shots to scare away the villagers. Some injures of a simple nature were also caused to some of the P. Ws. who were in the house. A report was lodged next day at the Police Station by Diwan Chand. In that report, the two gunmen's appearance was described in some detail but to full description of the outer culprits was not given. In the course of the investigation Barkat appellant was al arrested in his village in the Lahore district on the 15th May 1946. He was Produced before n Magistrate at Lahore after being detained at the Manawan Police Station for the night and then sent to jail. There at a regular identification parade held on 19th May 1946 by Ch. Muhammad Sharif, Honorary Magistrate, (P. W. 38), i.e. was recognised as one of the culprits of this dacoity by all the four material witnesses, namely, P. W. 2 Diwan Chand, P. W. 3 Jhanda Singh, P. W. 17, Muhammad Din and P. W. 18 Sudarshan Mal, Sher Ali, Suba and Faqiria were also arrested on the 14th May 1946 in this case. At an identification parade held at Amritsar on the 20th May 1946, by Mr. Sher Jasit Singh (who could not be examined at the trial), Jhanda Singh, Muhammad Din and Sudarshan Mal were successful in identifying these three as among the dacoits but Diwan Chand was unable to do so. The police also made slime recoveries from the houses of the four culprits and at their instance. The key of the bin in the locked house in each case was supplied by the relevant. From Faqiria's house ornaments Exhibit P. 6 to Exhibit P. 13 and Exhibit P. 28 to Exhibit P. 32 along with clothes Exhibit P. 39 to Exhibit P. 42 and currency notes Exhibit P. 43 were recovered. From the house of Sher Ali, articles Exhibit P. 20 Exhibit P, 24, Exhibit P. 35, Exhibit P. 38 and Exihibit P. 46 to Exhibit P. 48 were similarly recovered. From Suba's house the recovery was shade of articles Exhibit P. 14 to Exhibit P. 19, Exhibit P. 32 to Exhibit P. 34 and Exhibit P.

45. Barkat similarly produced ornaments Exhibit P. 1 to Exhibit P. 5 and Exhibit P. 25 to Exhibit P. 27 from his house. It is significant that the property recovered' from Sher Ali included the licensed gun belonging to Diwan Chand P. W. along with some cartridges. All this property was duly identified to belong to Diwan Chand or to other P.Ws. who had deposited it with him for safe custody. The appellants pleaded not guilty at the trial. Slier Ali alleged that the police took a pair of gold ear‑rings belonging to his niece and Rs. 220 in cash from his house and nothing else, Suba averred that only Rs. 400 were taken by the police from, his house. Faqiria similarly asserted that some cash, two ornaments and four pieces of cloth were removed from his house by the police, whereas Barkat claimed that Rs. 320 were taken from his house by the police and nothing else. No evidence in defence was examined. The prosecution case, therefore, stood unrebuted on the file. There is overwhelming evidence on the record to show that the property recovered belonged to Diwan Chand or the other P. Ws. That evidence has not been seriously assailed before me. The recoveries are also, in my opinion, established by unimpeach able evidence and they belie the statements made by the appellants at the trial: The allegation of partial recoveries by the appellants cannot be accepted on its face value. The evidence with regard to the identification of the culprits also appears to be satisfactory as nothing was brought out in the cross‑examination of the witnesses to suggest that they had only of opportunity to see the accused between the time of the dacoity and the identification parades. In these circumstances; I have no doubt that the appellants were among the dacoits 6 or 7 in number who had ransacked the house of Diwan Chand on the fateful night: Learned counsel for the at appellants then contended that the learned Magistrate was wrong in applying section 397, Pakistan Penal Code, Pakistan Penal Code for awarding enhanced punishment to the appellants. That section prescribes a minimum sentence of seven years' rigorous imprisonment in the case of offenders " using " any deadly weapon or causing grievous hurt ur attempting to cause death or grievous hurt to any person at the time of committing robbery or dacoity. The evidence is clear in the present case that all the offenders carried deadly weapons. Learned counsel, however, argues that not all the offenders brought into actual use any such deadly‑weapon or caused grievous hurt to any person. In my opinion, the meaning of the word "use" in this context must receive a comprehensive interpretation and would include the carrying of any deadly weapon in the course of a dacoity with view to overawe persons intending to resist the commission of the dacoity. This interpretation would be quite consistent with the intention of the Legislature as revealed by the language of section 398, Indian Penal Code. That section provides for a minimum punishment of seven years in the case of offenders who are merely attempting to commit robbery or dacoity if they are armed with any deadly weapon. It would be anomalous to hold that a mere attempt was considered to be more heinous by the Legislature than the completed offence of robbery or dacoity, when the offender was carrying a dangerous weapon. Learned counsel for the appellants placed reliance on certain authorities, e.g., Mohar Singh v. Emperor (A. I. R, 1926 Lah. 48 (D. B.), Khuda Dad v. Emperor (A. I. R. 1927 Lah. 791 (2)) and Ilahia etc. v. Emperor (A. I. R. 1924 Lah. 409) for the contrary view. These authorities, however, lay down the proposition merely that the doctrine of constructive liability cannot be imported for the purpose of applying section 397, Indian Penal Code. In none of these cases I find the word " use " being interpreted and in my view these authorities axe not inconsistent with the inter -protation I have adopted of the section. The authorities quoted by the learned Magistrate, viz., 13 Cr. L. J, 267 (Nga I v. E), 27 Cr. L. J, 334 (Nazar Shah v. E) and 34 Cr. L. J. 45 (Nagar v. E) are in accord with the view 1 have taken of this section. Reference may also be made in this connection to (1933) M. W. N. 727‑Vellaehami Theran v. E. I, therefore, see no ground for interference with the convic tions or the sentences of the appellants and dismiss the appeal. A. H. Appeal dismissed.