P L D 1961 (W (PLP)

11. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They led no evidence in defence.

12. Bashir approver is the only eye‑witness of the occurrence. He stated at the trial as follows :‑‑ "I knew Dara and Rahmat Ullah accused prior to the occurrence. All three of us used to commit thefts together. Nine or ten months ago at about 11 p.m. both the accused came to my baithak in Kot Allah Din and asked me to accompany them for a theft. We went to Chak No. 85/6‑R passing through Kot Khadim Ali. As we passed by the house of Gulzar Muhammad deceased we found its door open. He was lying in the courtyard on one cot, while the wife and child were lying on another. Dara accused stood with a dang at the head of the bed of the deceased, while Rahmat Ullah accused and I went into the kotha of the house. Rahmat Ullah accused picked up a bundle of clothes lying in the kotha, and handed it over to me. He carried a revolver which, he said, he had stolen from a Thanedar in Satellite Town, Montgomery. It is Exh. P. 49 present in Court. " As I tried to carry the bundle of clothes, it struck against the door of the kotha, and there was noise. This awakened the deceased. As he sat up on his bed, Dara accused gave him blow with his dang which, however got entangled in a tahli tree in the courtyard and only lightly landed on a shoulder of the deceased. I cannot say which shoulder it was. Then Dara accused jumped over the wall of the courtyard and ran into the lane. The deceased ran towards Rahmat Ullah accuse who fired at him with revolver Exh. P.

49. He fired twice and hit the deceased in the front part of the body. Then all three of us ran away. " There is a tube‑well engine 4/5 furlongs away from the place of occurrence which I used to work and which belongs to Ismail and Ibrahim of Chak No. 86/6‑R. Dara accused used to cultivate their land. Sadhu P. W. who used to guard the tube‑well was there. Upon seeing us he got up, but Rahmat Ullah accused threatened him with the revolver. Then we came to the cattle‑fair ground of Kot Allah Din and distributed the clothes. I had carried the bundle of clothes containing Exhs. P. 6 to P. 15, Exhs. P. 22 to P. 32 and Exhs. P. 35 to P. 46, and it was these that we distributed among ourselves."

13. We have considered the evidence on the record in the light of the well‑settled principle that the evidence of an approver must be corroborated showing the participation of each appellant A in the commission of the offence.

14. The prosecution relied on the (i) statement of Bashir approver ; (ii) dying declaration of Gulzar Muhammad deceased made to Ghulam Rasul Lambardar P. W. ; (iii) evidence of Sadhu (P. W. 3) ; (iv) recoveries referred to above in support of its case.

15. The dying declaration of Gulzar Muhammad is no of much value as it is silent regarding the identity of the culprits who had raided his house on the night of occurrence.

16. Sadhu P. W. stated at the trial " About 10 months ago, at about midnight, I was present at the tube‑well when the two accused and Bashir approver passed that way. I heard two shots fired in the direction of the Abadi of Chak No. 85/6‑R and I was going that way when the two accused and Bashir P. W. came up. Bashir P. W. carried a bundle of clothes on his shoulder. I asked them from where they were coming. Dara accused told me to keep quiet, while Rahmat Ullah accused threatened me with a revolver and said that he will kill me if I mentioned to any one that I had met them. Bashir P. W. said nothing. I was scared and kept quiet." Bashir approver stated in cross‑examination " Sadhu P. W. felt my bundle of clothes. I told him in confidence that we had stolen these clothes from Chak No. 85/6‑R. At that lime we did not know the name of the deceased. I also told him that Rabmat Ullah accused had fired twice at the owner of the house in which we committed theft, but that we did not know whether the man bad died. Rabmat Ullah accused had a suspicion that Sadhu might disclose this information and it was then that he threatened him. with the revolver. I told the above to Sadhu because I knew that he would soon learn of the occurrence. Rahmat Ullah threatened him while holding the revolver close to Sadhu." According to Sadhu P. W. he bad no talk with Bashir approver. Thus there is a serious discrepancy between the statements of the approver and Sadhu P. W. We, therefore, do not consider it safe to rely on the statement of Sadhu P. W.

17. The evidence of Mr. Muhammad Ashraf Malik P. W. clearly shows that the bullet recovered from Gulzar Muhammad's dead body had been fired from the revolver Exh. P. 49, recovered from Rahmat Ullah appellant. Thus, there is, corro boration of the approver's statement regarding Rahmat Ullah appellant's participation in the occurrence under consideration. No corroborative evidence is, however, forthcoming in the case of Dara appellant and he has to be acquitted on this ground alone.

18. The recoveries of the pieces of cloth are not of much value in showing the participation of Dara appellant in the commission of the offences under section 302/34 and 325/34, P. P. C. No charge in regard to the theft or robbery of the clothes recovered from the appellants and the approver had been framed. The .learned Sessions Judge at the commencement of the trial framed a fresh charge under section 325/34, P. P. C. This shows complete' negligence or ignorance of the definition of robbery on the part of: the public Prosecutor as well as the learned Sessions Judge.. If a charge had been framed for theft or robbery, we might have considered the evidentiary value of the recovery of the clothes. These recoveries have no value in respect of the charge under sections 302/34 and 325/34, P. P. C. Even if Dara's presence at the spot at the material time be accepted, he cannot be convicted under section 302/34, P. P. C. Section 34 of the Code reads " When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." The words "in furtherance of the common‑ intention of all" mean that all the persons charged must have consented to the commission of the crime committed, i.e., the 'act done must be the act contemplated by all. The statement of the approver does not show that Dara appellant knew that Rahmat Ullah appellant had a revolver with him. Obviously the main common intention of the approver and the appellants was to commit a theft and not an intention to commit murder. On behalf of the State it has been suggested to us that when a number of persons armed with deadly weapons, such as a revolver, resolve to commit a theft, it is legitimate to presume that they had the intention to kill anyone who might stand in the way of the attainment of their main object. In the present case only one of the three culprits was armed with a revolver. There is no evidence to show that it had been mutually decided between them that this revolver would be used to kill any person who resisted them. Of course, when a man accompanies thieves, one of whom is armed with a revolver, he must know it to be likely that a murder will be committed if the attempt to steal is resisted, but further than that, in our opinion, it is not safe to go. Knowledge is not the same thing as intention. If the number of persons taking part in this affair had been five or more, section 149, P. P. C. or section 396 would have been applicable. In that case the position would have been different. In the present case only three persons took part and in the absence of any evidence from which it can be inferred that they had a common intention, formed prior to the occurrence, to use the revolver if resisted, the common intention which can be F safely attributed to them is, at the worst the intention to commit robbery with the added knowledge that murder was a crime which was likely to be committed in the prosecution of their common object.

19. For reasons stated above, Dara's conviction under sections, 302/34 and 325/34, P. P. C, cannot be maintained. We, therefore, accept his appeal, set aside his convictions and sentences, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case.

20. As regards Rahmat Ullah appellant, the statement of the approver is corroborated by the evidence of Mr. Muhammad Ashraf Malik P. W. that the revolver recovered from this appellant had been used in the occurrence under consideration. His appeal is, therefore, dismissed and the sentence of death imposed on him under section 302/34, P. P. C. is hereby maintained and confirmed.

21. It is a pity that no charge of robbery was framed in this case. If such a charge had been framed, Dara might have been convicted of that offence or for being in possession of stolen property. K.B. A. Order accordingly.