1970 PLP 828 (SCMR)

Nemo for the State. Date of hearing : 19th June 1970 . JUDGEMENT M. R. KHAN, J.‑The petitioner Bachchu along with Kona Shamsher Ali, Nawab Ali and Jabbar Ali, was placed on trial for an offence and section 396 of the Pakistan Penal Code, The learned Sessions Judge, Rangpur found all these person; except Jabbar Ali to be guilty of the offence of dacoity with murder and convicted them under section 396 of the Penal Code and sentenced them to rigorous imprisonment for ten years, each. On appeal, the learned Judges of a Division Bench of the High Court acquitted Nawab Ali, but maintained tile convictions and sentences of the remaining accused persons including Bachchu. Bachchu alone has made the present petition for special leave to appeal against the judgment and order of the High Court. The prosecution case was that a dacoity was committed in the house of Karamatullah (P. W. 1) on the night following the 19th April 1964. After mid‑night, Karamatullah woke up on receiving a blow on his head. He saw two dacoits standing at the door of his hut. Of them, one had a gun and a burning mashal in his hand and the other had a lathi and a burning mashal. The dacoits numbering 7 or 8 entered the .hut of Karamatullah's son and beat him, They broke open a wooden chest and took away gold and silver ornaments and clothes there from. The wife and the mother of Karamatullah who were sleeping in their but raised alarm whereupon some villagers came there. At this, the dacoits started retreating. The villagers who came there chased the dacoits. After the dacoits had covered a distance of 3 or 4 plots, one of them fired a shot from a gun which hit Abbas Ali and caused his instantaneous death. The prosecution examined a large number of witnesses to prove the dacoity committed in the house of P. W. Karamatullah. Both the trial Court and the High Court were satisfied on their evidence that a dacoity was, in fact, committed in that house. It was also established by the evidence of the witnesses that the dacoits, while retreating with their booty acquired by dacoity, were chased by the villagers and that in the course of such retreat one of the dacoits fired a .gun shot which caused the death of Abbas Ali. Mr. B. N. Chowdhury, learned counsel for the petitioner does not dispute the commission of a dacoity in the house of Karamatullah and the murder of Abbas Ali in the manner stated above. He, however, contends that the petitioner Bachchu was not recognised by the witnesses and that as Abbas Ali was murdered after the dacoits had started retreating, the murder was not committed in the course of the dacoity and, as such, the offence, if any, was not an offence of dacoity with murder under section 396 of the Penal Code. With regard to the recognition of the petitioner as one of the dacoits, the Courts below relied on the evidence of P. Ws. 1 and 6 as corroborated by the evidence of P. Ws. 2, 3, 4, 5 and

8. Of them, P. W. 1 Karamatullah categorically stated that on receiving a lathi blow on his head he woke up but did not lose his sense. He then saw the dacoits one of whom was Bachchu who gave him 3 other blows on his head, back and shoulder. The evidence of these witnesses‑particularly the evidence of P. W. 1 was sufficient to establish that the petitioner was one of the dacoits who had participated in the dacoity. As regards the next point, the evidence is that after the villagers came to the spot, the dacoits who had already broken the wooden chest and removed gold and silver ornaments and clothes started retreating with their booty. It is very clear from the evidence that the dacoits were carrying off their booty and were being chased by the villagers. It was in the course of this retreat with the booty that one of the retreating dacoits fired a gun shot at a distance of 3 or 4 plots from the house of Karamat ullah, which hit Abbas Ali and caused his death. On these facts, there is no doubt that the murder of Abbas Ali by gun shot was committed by one of the dacoits while the dacoity was still continuing, although the murder was committed at a place a little away from the house. In other words, the looting of the property from the house of Karamatullah, the retreat of the culprits, with their booty and the murder of Abbas Ali were all done in course of the same transaction. Mr. B. N. Chowdhury cited the case of Emperor v. Chandar (3 Cr. L J 294) in support of leis con tention that the offence in this case is not ore under section 396 of the Penal Code. In the cited case, there was only art attempt to commit dacoity, but the dacoits did not succeed in carrying off any property as their attempt to commit dacoity was frustrated by the arrival of villagers and they abandoned their intention to rob. The villagers even then chased the culprits whereupon one of them killed one of the villagers. On these facts, it was held in the cited case that the offence was not one under section 396 of the Penal Code.. The facts of the present case are, however, different. In this case, the dacoits took away valuables and started carrying off their booty and it was at that stage that they killed one of the pursuers. The facts of the present case are similar to the facts of the cases of Lashkar v. Emperor (A I R 1921 Lah. 115) and Karim Bakhsh v. Crown (A I R 1923 Lah. 329). In the said two cases, it w as held that the murder committed by the dacoits in the course of retreat with their booty is an offence falling under section 396 of the Penal Code. Neither of the points urged by Mr. B. N. Chowdhury thus appears to be of any substance. The petition is, accordingly, dismissed. Petition dismissed.