P L D 1956 Lahore 157 (PLP)

SHABIR AHMAD, J.‑Fateh Sher, Muhammad Hayat and Yasin were each sentenced by Mr. M. A. Latif, Sessions Judge, Sargodha, to transportation for life under sections 302/34 P. P. C., to ten years' rigorous imprisonment under section 397 P. P, C., to ten years' rigorous imprisonment under section 307/34 P. P. C. and to eight years' rigorous imprisonment under section 460 P. P. C., all of which sentences were direct ed to run concurrently. Against the order of the learned Sessions Judge, Fateh Sher and Muhammad Hayat have pre sented Criminal Appeal No. 551 of 1954, while Yasin has presented a separate appeal which is Criminal Appeal No. 605 of 1954. The Provincial Government being of the view that the sentence under section 302/34 P. P. C., should have been one of death presented a petition (Criminal Revision No. 994 of 1954) for enhancement of that sentence at which a notice was issued to the three convicted persons to show cause against the enhancement of the sentence. The two appeals and the petition for enhancement of sentence will be disposed of by this order. The accused are alleged to have committed robbery in the house of Muhammad Hussain situated in the area of Chak No. 60/N.B. Khaizrabad at about 11 p.m. on the night between 14th and 15th of March 1953, and a report with regard to it was made within five hours at the Police Station Sadar Sargodha which is at a distance of about fifteen miles from the scene of the occurrence. The prosecution alleged that the robbers scaled the wall of the house of Muhammad Hussain and entering his court‑yard asked him to give the keys of the lock of his room, and on his refusal to do so, two of the robbers, who carried swords, caused him injuries. Another robber, who carried a firearm, went to the roof of the house and from there fired in the air with the object of scaring away the intending rescuers. However, this attempt at daunting the residents of the village did not prove successful, and some of them rushed to render assistance to Muhammad Hussain. Finding that the residents of the village intended to capture them, the robbers scaled the wall and jumped outside into the lane, but not before they had removed some of the clothes from the room the lock of which had been broken open by one of them 'With a pestle lying in the court yard. When outside the house of Muhammad Hussain the robbers were surrounded by the villagers, who gathered in large numbers, at which that one of them, who carried a firearm which subsequently proved to be rifle, fired at the villagers four of whom received injuries and one of those four met with his death. In spite of four of them having been hit with bullets, some of the other villagers succeeded in capturing Yasin on the spot. Yasin was found to be carrying no weapon but only an electric torch which he had flashed around when he and his companions had found themselves surrounded by the villagers. . Of the three robbers, who managed to escape, Fateh Sher was identified by two of the rescuers, while the names of Muhammad Hayat and Sattar Shah, the latter of whom was an absconder at the time when the present trial started and is perhaps so even now, were supplied by Yasin who was captured by the villagers. Haji Ghulam Hussain, Medical Officer‑in‑Charge Civil Hospital, Sargodha, conducted the post‑mortem examination on the death body of Ahmad, son of Shera, who had met with his death because of the firing by one of the robbers, and found on the dead body four wounds which, in the opinion of the doctor, had resulted from a missile fired from a firearm. Muhammad, son of Raja, had also a firearm injury as had Fatta, son of Matta, and Matta. Muhammad Hussain, the owner of the burgled house, when medically examined was found to have three incised wounds, one of which was on the right side of the chin, one on the left side of the back and the third on the outer side of right wrist. Yasin was also examined by the same doctor, and was found to have seven simple injuries caused with a blunt weapon on his person. Ten persons were produced by the prosecution to give ocular evidence about the occurrence. They are Muhammad Hussain (P. W. 2), Muhammad, son of Raja. (P. W. 3), Fateh Muhammad (P. W. 4), Matta (P. W. 5), Murid Hussain (P. W. 6), Karam Khan (P. W. 7). Malli (P. W. 9), Lala (P. W. 10) and Allah Ditta (P. W. 11). All these witnesses deposed about the robbery in the house of Muhammad Hussain and the subsequent caqture of one of the robbers after the villagers had been fired at by that one of then robbers who carried a firearm. Some of these witnesses bore injuries on their persons and it can hardly be doubted that they had seen the occurrence. The above evidence proves not only that there was a robbery in the house of Muhammad Hussain but also that the number of robbers was four, of whom one carried a rifle, two carried swords and one an electric torch. The evidence of the above witnesses further proves that Yasin appellant was arrested at the spot by some of the villagers, who in the face of grave danger and after some of their co‑villagers had dropped down on being hit by bullets, showed commendable courage. Yasin when questioned by the Courts below to explain the evidence against him, denied that he had been captured at the scene of the robbery. His case was that he was going to the dera of Mehr Muhammad Hayat Lak in the village when he was arrested and given dang blows. He added that his captors took him to the village where a number of people gathered around. He was taken to the dera of Malik Khizar Hayat Khan Tiwana where he was beaten with sticks, and on being compelled by his captors disclosed the name of Muhammad Hayat as one of his companions. The prosecution case, on the other hand, was that Yasin when questioned after his arrest disclosed that his companions were Fateh Sher and Muhammad Hayat (appellants in Criminal Appeal No. 551 of 1954) and Sattar Shah: No evidence was produced by Yasin appellant in support of his plea that though innocent he had been arrested by the villagers by mistake which they refused to admit at any stage. The evidence led by the prosecution with regard to the capture of Yasin in the manner alleged by the prosecution is overwhelming and I have no hesitation in rejecting the plea of Yasin appellant. I now proceed to consider if the other two appellants are proved to have been two of the three companions of Yasin. The statements of majority of the eyewitnesses produced by the prosecution to the effect that Yasin gave the names of his companions as Muhammad Hayat and Fateh Sher appellants are corroborated by the recital to that effect in the first information report which, in the circumstances of the case, was fairly prompt. The question to consider, however, is if the statement of Yasin with regard to his companions can be used against the persons named by him. The learned counsel for the Crown urged that the statement of Yasin would fall within the four corners of section 30 of the Evidence Act, and could, therefore be considered as evidence against Fateh Sher and Muhammad Hayat appellants. The section relied upon by the learned counsel for the Crown is in the following terms :‑ "

30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such con fession as against such other person as well as against the person who makes such confession." It appears to me that the language of the section which has been reproduced above will not admit of the interpretation sought to be placed thereon by the learned counsel for the Crown. If Yasin had made a confession in which he implicated others as he did himself, or to use a pithy expres sion, tarred himself with the same brush with which he tarred the others, the statement would, no doubt, be admissible under section 30 of the Evidence Act, but it appears to me that no occasion arose for Yasin to make a confession to the effect that he had taken part in the robbery because having been arrested at the spot by the villagers it is improbable that the villagers would no doubt to ask him if he had taken part in the robbery. If, however, Yasin had been arrested at some distance from the house of Muhammad Hussain on suspicion and had said that he and some others had committed a robbery, that statement would have been a confession, but the same cannot be said of the statement relied upon by the prosecution. No doubt when Yasin said that his companions were Muhammad Hayat and Sattar Shah, he was impliedly confessing to be one of the robbers, but after giving the matter my anxious consideration I have formed the view that this sort of implied tarring of himself would not make the statement he made admissible in evidence under section 30 of the Evidence Act. I now pass on to the question if the other evidence led by the prosecution is sufficient to bring home the guilt to Fateh Sher and Muhammad Hayat appellants against Fateh Sher there is the evidence that when the robbers were trying to make good their escape, he was identified by two persons, namely, Murid Hussain (P. W. 6) and Karam Khan (P. W. 7) to whom Fateh Sher appellant was known previously. The statements of these witnesses in Court are corroborated by the first information report in which it was said that Murid Hussain and Karam Khan had identified one of the robbers as Fateh Sher Machhi of Megha. The learned counsel for the appellants argued with regard to the evidence of identification that as Fateh Sher's relations with the kardar of Malik Khizar Hayat Khan Tiwana, who had taken an active part in the making of F. I. R., were not cordial, the evidence regarding Fateh Sher having been identified at the spot should not be accepted. This argument does not impress me because the differences between Fateh Sher and the kardar of Malik Khizar Hayat Khan Tiwana do not appear to be of such a serious nature as to induce the latter not only to name him as a culprit in the F. I. R. but to induce Murid Hussain and Karam Khan who appeared to be respectable witnesses to fall in line with him with the object of having an innocent man tried for a very grave offence. The evidence of the eyewitnesses against Fateh Sher is corroborated by the fact that he, on the 26th of March 1953, gave information which led to the recovery of a sword stains on which were reported by the Serologist of the Government of Pakistan to be of human blood. Muhammad Hayat (P. W. 14) and Sikandar Khan Assistant Sub‑Inspector (P. W. 15) deposed about this recovery, and there is no reason why their statements should not be accepted. The argument of the learned counsel for the appellants that as the sword was not recovered from a place in the possession of Fateh Sher but from a wheat field, the recovery should have no weight, has no force because when it is established that an accused person has given information about an incriminating B article it is for him to explain how he came by the knowledge of the place where that article was and if an explanation given is not accepted, the recovery cannot be kept out of considera tion. Fateh Sher appellant gave no explanation of his knowledge of the hiding place of the bloodstained sword, and I would, therefore, hold that the recovery has a good deal of weight against him. The evidence of the two eyewitnesses, who had identified Fateh Sher appellant at the spot coupled with the recovery at his instance prove that he was one of the robbers. I will now deal with the case against Muhammad Hayat appellant. According to the prosecution, he was arrested on the 20th of March 1953, though he himself says that he was arrested on, the 16th of March. At the identification parade held under the supervision of Mr. Taj Muhammad Khan, Tahsildar Sargodha, (P. W. 8), Murid Hussain (P. W. 6), Karam Khan (P. W. 7) and Allah Ditta (P. W. 11) identified him as one of the culprits. Another identification parade was held by the same Tahsildar on the 4th of November 1953 at which Muhammad (P. W. 3) and Fateh Muhammad (P. W. 4) correctly identified Muhammad Hayat appellant as one of the robbers. The opportunities to see the robbers were meagre and though I do not think that the witnesses, who identified Muhammad Hayat at the parade, were deliberately giving false evidence, I am of the opinion that the evidence of identification is not safe to rely on. There is, however, against Muhammad, Hayat appellant the fact that he gave information which led to the recovery of two dopattas, a chadar and a shirt all of which articles were identified by Muhammad Hussain (P. W. 2) to be a part of the property stolen from his house on the night between the 14th and 15th of March 1953. The learned counsel for the appellants urged that as Muhammad Hussain was the solitary witness, who identified the clothes, the clothes were not established to be stolen property. In my view Muhammad Hussain is shown to have made his statement conscientiously because in spite of the fact that he had been the victim of a robbery he said that only some clothes had been stolen. The recovery was from a place which was not in the possession of Muhammad. Hayat but as he gave no explanation as to how he came by the knowledge of the place where the stolen property lay, the evidence cannot be excluded from con sideration. Against Muhammad Hayat, therefore, there is only the fact that he was found in possession of stolen pro perty within a few days of the robbery. This evidence in my view is not sufficient to connect him with the robbery, though it would prove an offence under section 411, P. P. C. against him. I would, therefore, set aside the conviction of Muhammad Hayat appellant under all the sections of which he has been convicted by the learned Sessions judge and convict him under section 411 P. P. C. directing that he shall suffer rigorous imprisonment for three years for that offence. I will now deal with the question whether or not Yasin and Fateh Sher appellants were proved guilty of the offences for which they were sentenced. The learned counsel for the appellants did not question the conviction and sentence of these two appellants under sections 460 and 397 of the P. P. C. but as the question of the convictions under these sections is of some importance, I deem it necessary to deal with it. I will first take the conviction of Yasin and Fateh Sher appellants under section 460 of the P. P. C. That section enacts that if at the time of committing lurking house trespass by night or house‑breaking by night any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house‑trespass or house breaking by night shall be punished as provided in the section. The section will apply even if causing of death or grievous hurt or the attempt at causing death or grievous hurt is against the wishes of the companions of the offender guilty of that offence of violence, but it is obvious that the section will have no application if it is not established that death or grievous hurt was voluntarily caused or attempted during the lurking house‑trespass or house‑breaking by night. In the present case one person was killed by one of the robbers but that murder having been committed after the offence of house‑breaking terminated will not attract the provisions Of E section 460 of the P. P. C., nor will the hurts received by persons who were hit with bullets fired by the robber who carried a rifle. The only person who received hurt during the course of the house‑breaking was Muhammad Hussain (P. W. 2), and one has, therefore, to see if the injuries received by him made section 460 of the P. P. C. applicable. Muhammad Hussain (P. W. 2) received three incised wounds all of which were simple in character, but none of these injuries indicates that the intention of the robber who caused it was to attempt to cause death or grievous hurt. That the robbers were guilty of house‑breaking by night cannot be doubted because it is established that they entered the house and left it by scaling over a wall and all this was done between sunset and sunrise, but as death or grievous hurt was not caused or attempted in the course of the house breaking, section 460 of the P. P. C. had no application. I would, therefore, set aside the conviction and sentence of Yasin and Fateh Sher appellants under section 460 of the P. P. C. Coming now to the sentence under section 397 of the P. P. C., I find that here again the learned trial judge has not exercised proper care before passing the sentence. This section is in the following terms :‑ "

397. 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. As its language clearly shows section 397 of the P. P. C. does not create an offence or prescrible its punishment but fixes the minimum punishment in certain cases of robbery and dacoity. The section is a kind of a proviso to sections 392, 394 and 395 of the P. P. C., the first one of which prescribes the maximum punishment for an offence of robbery, the second maximum punishment for an offence of robbery during the commission of which hurt is caused and the third the maximum punishment for an offence of dacoity. Section 397 of the P. P. C., on the other hand, prescribes the minimum punishment for that one of the robbers or dacoits who is proved to have done any of the acts mentioned therein. The liability created by section 397 of the P. P. C. is personal to the offender who does any of the acts mentioned therein and provisions of law which make an offender vicariously liable for the acts of his companions cannot be invoked to make the section applicable. Considered in relation to the facts of the present case, section 397 P. P. C, will have application to each one of the robbers who is proved to have caused or to have attempted to cause grievous hurt or to have attempted to cause death or to have used a deadly weapon. It is established that out of the robbers, Yasin appellant was carrying only an electric torch, two of them were armed with a sword each, while one was armed with a rifle. That the four culprits were guilty of robbery is hardly open to question but as Yasin is not proved to have attempted to cause death or to have caused or attempted to cause grievous hurt and as the electric torch he carried was not a weapon much less a deadly one, section 397 P. P. C. can have no application to his case. As regards Fateh Sher appellant, it is established that he was armed with a sword or a rifle. In either case section 397 P. P. C. will have application to Fateh Sher appellant, but whether or not that section should be invoked in his case will be considered later on. Before I deal with the other questions that arise I will dispose of the question whether or not Yasin and Fateh Sher appellants were rightly convicted under sections 302/34 and 307/34 of the P. P. C. It is established that one of the villagers died and some others received injuries as a result of shots fired from the rifle carried by one of the robbers and it is hardly open to doubt that the robber, who fired the fatal and the other shots, was guilty of the offences of murder and attempted murder. It not being known which of the robbers carried the rifle, Yasin and Fateh Sher appellants could be convicted of murder and attempted murder only if it were established that the case attracted the provisions of section 34 of the P. P. C. That section has application only if the act for which offenders other than the one who did it are sought to be made liable was done in furtherance of the common intention of the participants in the crime and not otherwise. The section has some resemblance to section 149 of the P. P. C. as like that section it makes an offender vicariously liable for the acts of his companions but there they similarity between the two sections ends. Section 149 P. P. C. is applicable not only when an offence is committed in furtherance of the common object of the unlawful, assembly but also if the offence committed was known to be a like result of the object which the members of the unlawful assembly set out to achieve. Section 34 P. P. C., however, will be applicable only if the act for which offenders, other than those who did it are sought to be made liable, was done in furtherance of the common intention of the offender or offenders who actually did it and of those sought to be made vicariously liable for it. Direct evidence about what the common intention of persons engaging in a crime was, is rarely available and is generally to be inferred from the attendant circumstances. If the act for which offenders other than its perpetrator are sought to be made liable was inevitable, Courts will draw the inference that the common intention of all the participants in the crime was to do that H act unless it is proved by cogent evidence that it was not. Again, if all the offenders. have acted in a manner which shows unmistakably that their common intention was to do what one or some of them achieved, section 34 of the P. P. C will have clear application. This may be illustrated by a C, case in which all the offenders shoot at a man and only one succeeds in hitting and killing him. The offender who succeeds hitting his target will have committed the offence of murder and his companions will be guilty of that offence by the application of section 34 of the P. P. C. though if that section were not applicable they would have been guilty merely of an offence of attempted murder. If, however, the proved facts do not point to the result having been the common intention of all the offenders section 34 of the P. P. C. will have no application. One difference between sections 34 and 149 of the .P. P. C. is that while the latter section may have application even if the offence committed by one or some of the offenders was such which though not the common object of the unlawful assembly should have been known to be a likely result of what the unlawful assembly set out to achieve, the former will be applicable only if the act that was done was the one which the offenders had formed the common intention to do. If section 149 P. P. C. were applicable to the present case, I would have had no hesitation in holding that because one of the offenders carried a firearm the murder and attempted murder should have been known by all the members of the unlawful assembly to be a likely result and I expressed this view in Raja v. The Crown (P L R 1954 Lah. 93=P L D 1954 Lah. 201), but from the fact that murder and attempted murders were likely results the application of section 34 P. P. C. does not necessarily follow. The learned counsel for the Crown contended that if one of the robbers is armed with a lethal weapon like a rifle and murder and attempted murders are committed, section 34 of the P. P. C. cannot but have application and to justify his contention placed reliance on Sher Muhammad and another v. Emperor (A I R 1927 Lah.765), Barendra Kumar Ghosh v. Emperor (AI R 1925 P C 1), Indar Singh Gurmukh Singh v. Emperor (A I R 1933 Lah 819), Bahar v. The Crown (P L D 1954 F C 77), Sana Ullah and others v. The Crown (P L D 1954 Lah. 382) It appears to me that as the question to what the common intention of a of offenders was is one of fact in each case, decisions given in other cases can have no more than persuasive value as it is hardly open to question that a tribunal called upon to decide a question of fact cannot content itself by saying that because the question of fact that arises was decided in a particular manner by another tribunal the facts before which were almost similar its own decision was the same as that given by that other tribunal. Questions of facts in two cases cannot be exactly similar and at any rate it is only on question of law that decisions of some Courts are binding on themselves and on some other Courts. It will, therefore, be necessary to see if there is any evidence which would show that when the robber armed with rifle opened fire he did that in the prosecution of the common intention which he shared with his confederates in crime. The proved facts are that when the robbers entered the house of Muhammad Hussain, two of them who were armed with swords caused simple injuries to him to force him to disclose where his valuables were and that one of them, who was armed with a. rifle, went to the roof of the house and fired in the air to scare away intending rescuers. Even when the robbers sensed that the house they were looting was being surrounded the robbers with the rifle did not fire at the villagers. When the robbers were outside the house, they found that the villagers had surrounded them and it was at the stage at which the robber with the rifle realized that the villagers stood between him and liberty that he fired. I have no doubt in my mind that his companions had nothing but approbation and admiration for the robber with the rifle for having effectively done away with the barrier that stood between them and their liberty, but that would be no proof of the shooting having been resorted to in furtherance of the common intention of all of them. The object in carrying the rifle may have been either to scare away intending rescuers or to shoot down persons who dared to interfere, and as the circumstances which have been detailed are equally compatible with the one as with the other, I would give the accused the benefit of the doubt on this point, and would hold that it was not established that the robber with the rifle resorted to shooting at the villagers in furtherance of the common intention he shared with his confederates. In view of what I have said, I would set aside the convictions of Yasin and Fateh Sher appellants under sections 302/34 and 307/34 of the P. P. C., This leads one to the question what offence Yasin and Fateh Sher are proved guilty of by reason of their having participated in looting the house of Muhammad Hussain. In my opinion the offence committed by these appellants fell under section 394 of the P. P. C: which reads as follows :‑ "

394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with transportation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." The injuries caused to Muhammad Hussain were clearly caused in the course of the commission of theft and to facilitate it. The definition of "robbery" contained in section 390 P. P. C. is to the effect that theft is robbery if in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away pro perty obtained by theft, the offender for that end voluntarily causes to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. The rifle was fired when the property which had been stolen was being carried away and even if the circum stance that the man whose house was looted was caused injuries to, did not exist the firing of the rifle would make the offence amount to robbery. . Section 394 of the P. P. C., as ; is clear from its language, has application when hurt is caused in the course of robbery irrespective of whether or not the robber who caused hurt was in causing it carrying out the intention he shared with his confederates. Section 394 of the P. P. C. will have application even if it were established that the robber who caused hurt was, in doing that, acting against the wishes of his companions. Here a slight difficulty crops up because Yasin and Fateh Sher appellants were not charged under section 394 P. P. C. The second head of the four‑headed charge framed by the committing Magistrate which alone dealt with robbery, charged the three appellants as under :‑ "That you, on the night between 14th and 15th March 1953, at village Khizrabad committed robbery in the house of Muhammad Hussain being armed with gun and swords and attempted to cause his death and thereby committed an offence punishable under section 397 of the Pakistan Penal Code and within the Session's Court's cognizance ". This charge was obviously defective because as discussed by me while dealing with the conviction under that section, section 397 of the Pakistan Penal Code creates no offence nor prescribes its punishment but merely prescribes the minimum punishment for certain kinds of robberies and dacoities and the charge should have been under section 394 of the Pakistan Penal Code. The omission to frame the proper charge, however, is not an insurmountable obstacle in the present case. The third and the fourth heads of the charge dealt with the offence under sections 302/34 and 307/34 P. P. C., respectively, and it can hardly be doubted that the accused persons knew that they were being tried for robbery during the course of which hurt had been caused and, by reason of sections 225 and 237 of the Code of Criminal Procedure, Yasin and Fateh Sher appellants can even in appeal be convicted under section 399/bf the Pakistan Penal Code. The offence of Yasin and Fateh Sher appellants falls clearly under section 394 P. P. C., and I alter their conviction to that offence. I have already held that section 397 P. P. C., has no application to the case of Yasin, but there is no doubt that Fateh Sher's case would be covered by that section. It is, however, not necessary to invoke that section because the circumstances of the case call for a severer sentence than the one prescribed by it. One of the robbers was armed with a rifle and as even those armed with swords did not refrain from using those weapons, I would sentence Yasin and Fateh Sher appellants to trans portation for life each for the offence under section 394 P. P. C. proved to have been committed by them. As a result of what I have said above, I would partly accepting the appeal of Muhammad Hayat appellant set aside the sentence imposed on him by the trial judge and convicting him under section 411 P. P. C., direct that he shall suffer rigorous imprisonment for three years. Further I would change the conviction of Yasin and Fateh Sher appellants to one under section 394 P. P. C., for which each shall suffer transportation for life. In view of the conviction under section 302/34 P. P. C., being .set aside no question of enhancing the sentence for that offence arises and I would dismiss the petition for revision presented by the Provincial Government. MUHAMMAD SHARIF, J.‑I agree with my learned brother that in the circumstances of the case the statement of Yasin appellant would not fall under section 30 of the Evidence Act, that section 460 of the Pakistan Penal Code was not applicable, that section 397 of the Pakistan Penal Code was not applicable to Yasin appellant, that the conviction of Muhammad Hayat appellant should be altered to one under section 411 of the Pakistan Penal Code for which he should suffer rigorous imprisonment for three years and that the conviction can be altered to section 394 of the Pakistan Penal Code. I am, however, doubtful that the convictions under section 302 read with section 34 of the Pakistan Penal Code and section 307 read with section 34 of Pakistan Penal Code were not justified. It is true that rifle was not used fatally till it became necessary to use it to avoid the arrest of the robbers but that alone would not make section 34 of the Pakistan Penal Code inapplicable. I am not to be understood to be saying that if a murder is committed by robbers, section 34 of the Pakistan Penal Code must come into play because the mere fact that some persons committed a serious offence is not by itself sufficient for holding that a more serious offence committed by one of them in the course of the commission of the offence, they had planned to commit, was also committed as all of them desired it. But when persons set out to commit robbery and one of them commits a murder with a lethal weapon, which he carries to the knowledge of others, I would, in the absence of evidence which proves to the contrary, be inclined to hold that the murder resulted because of a reconverted plan between the robbers in spite of the fact that section 34 of the Pakistan Penal Code is more limited in its scope than section 149 of the Pakistan Penal Code. It is, however, clear that whether or not the case attracts section 34 of the Pakistan Penal Code is a question of fact in each case and has to be decided keeping in view the entire circumstances. My learned brother has proposed a sentence of trans portation for life for Yasin and Fateh Sher appellant under section 394 of the Pakistan Penal Code and as, even if I had upheld the conviction under section 302 read with section 34 of the Pakistan Penal Code, I would not have enhanced the sentence for that offence to death and as the setting aside of the conviction under section 307 read with section 34 of the Pakistan Penal Code can have no material effect because the sentence for that offence has been ordered to run concurrently with those for other offences, it appears unnecessary to me to go into the question of fact regarding the application of section 34 of the Pakistan Penal Code to the offence of murder and attempted murder committed by one of the robbers, and I concur in the order proposed by my learned brother. A. H. Conviction altered.