P L D 1954 Lahore 201 (PLP)

3. One maiyan and 10 golden tikar, 2 tolas, 5 mashas. With regard to this recovery, there is the evidence of Nasir Ahmad lambardar of Gojra, Tehsil Daska, (P. W. 22), and Muhammad Sadiq, Sub‑Inspector, (P. W. 24), which there is no reason to doubt. The appellant did not claim the ornaments and the prosecution produced evidence which establishes conclusively that these ornaments were part of the property stolen from the house of Hayat Muhammad lambardar on the 7th of November 1950. The plea of the appellant was that though the ornaments alleged to have been recovered from him, which were mentioned in the memo. Exh. P. W. 31/C., were not recovered from him, a bar of gold was and Nathu Khan, (D. W. 1) gave evidence in support of this plea. This witness, who is a lambardar of village Isharke, where Raja appellant resides, and had signed the memo. Exh. P. W. 31/C, was declared hostile in the Court of the committing Magistrate and was not produced by the prosecution in the trial Court. I have considered the deposition of this witness very carefully and find myself in agreement with the learned trial judge that the witness was not reliable. The owners of the recovered ornaments have proved that they were stolen from the house of Hayat Muhammad on the 7th of November 1950 and I, therefore, hold that the statement of the approver against Raja appellant .is corroborated by the recovery of stolen ornaments from his possession. With regard to Sohna appellant the prosecution led evidence that he had given information on the 28th November 1950 which led to the recovery of the following articles from him :‑

1. One inam of gold weighing 6 mashas. 2. 19 beads of kantha of gold weighing 2 tolas, 5 mashas,

3. One sanghara of kantha of gold weighing 2 mashas, rattis. .

4. One kantha of gold with wax weighing 3 mashas, 4 rattis.

5. Bolak of gold about 1 tola.

6. Golden nali containing beads green and red weighing.

7. Taweez of gold weighing 1 tola. 8. 10 currency notes of Rs. 10 each and one currency note of Rs.

100. This recovery was deposed to by Qamar‑uz‑Zaman, Sub‑Inspector, (P. W. 8) Nasir Ahmad lambardar (P. W. 22), Muhammad Sadiq (P. W. 24) and Muhammad Aslam, Sub‑Inspector, (P. W. 29) whose depositions there is no reason to doubt. That the articles other than the currency notes were stolen on the 7th of November 1950 from the House of Hayat Muhammad lambardar is established beyond all reasonable doubt from the statements of the owners of these articles who had appeared as witnesses. I would, therefore, hold that the statement of the approver against Sohna appellant is corroborated by the recovery of stolen property from him. The case of Rah appellant stands on the same footing as that of the other two appellants. This appellant produced the following ornaments:-

1. Inam kantha of gold weighing 7 mashas, 3 rattis. 2. 19 beads of kantha of gold containing wax, weighing 2 Colas, 6 mashas, 3 rattis.

3. Mali with sanghara containing wax weighing 6 mashas, 3 rattis.

4. Golden dandi containing red nag, weighing 11 mashas, 3 rattis.

5. Golden tikha, weighing 11 mashas.

6. One nama of gold weighing 7 mashas, 7 rattis. 7. 4 silver bangle, weighing 14 tolas, 4 mashas.

8. One band of silver, weighing 4 tolas. 9. 4 kheses. (This recovery has been proved by Qamar‑uz‑Zaman, Sub‑Inspector, P. W. 8), Nasir Ahmad lambardar (P. W. 22) and Muhammad Aslam, Sub‑Inspector, (P. W: 29). The appellant admitted that the police bad searched his house, adding that his wife had produced some ornaments which were different from those alleged by the prosecution and Nathu Khan (D. W. 1) supported this plea. I have already expressed my view about the veracity of Nathu Khan (D. W. 1), which I do not see any reason to change. That the ornaments recovered from this appellant, which are detailed in Exh. P. W. 31/B, were stolen on the night of the 7th November 1950 from the house of Hayat Muhammad lambardar, is established by the evidence led by the prosecution. I would, therefore, hold that the statement of the approver against Rafi appellant was also corro borated by the recovery of certain stolen articles from his possession. One piece of evidence used against Shukar Din appellant was that he had accompanied the approver to the shop of Mahmud Ali Shah (P. W. 12) where both of them bad sold some gold ornaments and had given fictitious names. P. W. 12 produced a register containing an entry which bore two thumb impressions, but while the prosecution could prove that one of the thumb impressions was that of the approver, they could not establish that the other one was that of Shukar Din appellant, who denied that he had ever gone to the shop of Mahmud Ali Shah (P. W. 12) This recovery, in my view, cannot be used against the appellant because Mahmud Ali Shah produced no ornaments and only a gold bar and it is not, therefore, established that the ornaments sold were a part of the booty from the house of Hayat Muhammad lambardar though the approver says that they were. The other piece of evidence against Shukar Din appellant was that he had sold 4 silver bangles weighing 11 Colas, 8 mashas, one silver sagla weighing 10 tolas, 2 mashas and one kara of silver weighing 4 tolas which have been proved to be a part of the stolen property to Ali Bakhsh Silversmith (P. W. 13). Shukar Din appellant when questioned about the sale of these articles admitted that he bad sold them explaining that he had done so on behalf of Nawab approver. The entry in the bahi of Ali Bakhsh (P. W. 13) shows that Shukar Din had given his correct name and address. and the plea of Shukar Din that when he sold the silver ornaments to Ali Bakhsh, he did not know that they were the proceeds of a theft appears to be by no means unreasonable. As Shukar Din appellant is not proved to have been anything but an innocent agent of the approver, I do not think that the sale by him to Ali Bakhsh of certain stolen ornaments can prove an offence under section 412/414 of the P.P.C. against him. I would, therefore, give the benefit of the doubt to Shukar Din and acquit him. The question to consider is whether the recovery of a part of the stolen property from Raja, Sohna and Rafi appellants coupled with the statement of the approver that these three appellants were his companions in the dacoity committed at the house of Hayat Muhammad lambardar was sufficient to prove that they had parti cipated in the dacoity. The learned counsel for the appellants urged that the recoveries by themselves were not sufficient to establish that these three appellants had taken part in the dacoity and proceeded to argue that the corroborative evidence must by itself establish the offence deposed to by the approver but is obvious that this argument cannot be accepted. It the corroborative evidence was by itself sufficient to bring home the guilt to the accused persons, it would not be necessary to have the statement of the approver. All that is required is that there should be some evidence which would convince the Court that the statement of the approver against the accused was not false. Considering the recoveries, I am of the view that the statement of the approver that Raja, Sohna and Rafi appellants were his companions in the dacoity committed at the house of Hayat Muhammad lambardar on the 7th of November 1950 was correct. I hold, therefore, that these three appellants were rightly held to have participated in the dacoity. Before I part with the case, I consider it necessary to point out that in the circumstances of the present case, the conviction should have been under section 302/149 and not under section 396 of the Pakistan Penal Code. The difference between sec tion 302/149 and section 396 of the Pakistan Penal Code is not merely academic because though the maximum sentence for the two offences is the same, one of the alternative sentences in the case of an offence under section 396 is imprisonment which may extend to ten years, while the only alternative sentence of the offence under section 302/149 is transportation for life. As no minimum sentence is prescribed for an offence under section 396 of the Pakistan Penal Code, a dacoit convicted under this section may sometime escape with a grossly inadequate sentence. If a case of murder committed during the course of a dacoity were, irrespective of the circumstances, to be held to be punishable only under section 396 of the Penal Code the framer of the Code will have to be presumed to have intended to enact that even an intentional murder committed in the course of a dacoity in furtherance of the common object of the dacoits or in furtherance of their common intention, was not as heinous as ordinary murder, which will be doing the framers a good deal of injustice. The definition of dacoity in section 391 of the Pakistan Penal Code makes it clear that the offence will amount to dacoity only if the participants are five or more. The common object of the dacoits is to be either theft or extortion and it is obvious that they form an unlawful assembly within sec tion 141 of the Pakistan Penal Code. As persons employed in committing a dacoity are an unlawful assembly, section 149 of the P. ‑P. C. will apply to their acts and the death caused by one of them will make the others guilty of murder if the causing of death was in prosecution of the common object of the unlawful assembly and even if it was not that it was known to be a likely result. It is proved beyond all reasonable doubt that the dacoits were at least seven in number, one of whom carried a rifle and another a gun, while the rest carried some other weapons. When seven persons armed as heavily as the dacoits in the present case were, to go to commit theft in a house, they must know that death was likely to be caused at least by persons who carried firearms. Section 396 of the P. P. C. could not have been intended to apply to cases in which section 149 can be invoked for making each dacoit liable for the murder committed by one of them. This section, which is in the following terms:‑ "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or transporation for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." Will, in my view, apply where the murder committed was neither in the furtherance of the common object of the dacoits nor was it a result which was known to be likely. For example, if one of the dacoits in the course of the dacoity happens to see a person who has run away with his wife and kills him, the other dacoits cannot escape liability under section 396 of the P P C simply because the murder resulted as the dacoit responsible for it had a personal grudge against the victim, but it may not be possible to convict the companions of the murderer under section 302/149 of the P. P. C. Another class of cases‑ to which section 396 of the P. P. C. may apply in preference to section 302/149 of that Code is where, without his companions knowing it, one of the dacoits carries a weapon with which he kills someone in the course of the dacoity. In such a case if the common object of the dacoits was not to commit murder, the murder committed cannot be reason ably said to have been known by the companions of the person who committed it to be the likely result. In view of what I have said, I am of the opinion that those proved to have participated in the present dacoity were guilty of murder and punishable under section 302/149 of the P. P. C. As, however, it was not the prosecution case that any of the three appellants who have been found guilty was directly responsible for killing Muhammad Yaqub, the alter native punishment prescribed for an offence under section 302/149 has been imposed on all three of them and there is no petition for enhancement of their sentence, I would content myself with dis missing their appeal. The result, therefore, is that while Shahna, Alli, Paralli and Shukar Din are acquitted and are to be set at liberty forthwith, the appeal of Raja, Sohna and Rafi appellants being dismissed, the sentences imposed on them are maintained. S. A. RAHMAN, J.‑I agree that the appeal of Shahna, Alli, Paralli and Shukar Din be allowed, that they be acquitted and set at liberty forthwith, I also agree that the appeal of Raja, Sohna and Rafi be dismissed and their sentences maintained. I do not feel it necessary to express an opinion on the question whether the conviction should have been, under section 302/149 P. P. C. rather than section 396 P. P. C. as the question was not fully argued before us. A.H. Order accordingly.