P L D 1957 (W (PLP)

ORTCHESON. J.‑

This order will dispose of two connect ed Criminal Appeals, Nos. 812 and 1077 respectively of 19_ 5, the former by Rahmat Ullah, aged 30 years, and Thiraj, aged 28 years, against their conviction by Mr. D. Fazal‑ud‑Din, Additional Sessions Judge, Multan, Rahmat Ullah under section 397 and Thiraj under section 395, P.P.C., both being sentenced to ten years' rigorous imprisonment, and the latter by the State against Rahmat Ullah, Thiraj, and three other persons, Zulfiqar, aged 30 years, Muhammad Amin, aged 30 years, and Sultan, aged 28 years, from the acquittal of the first two respondents under section 396, P. P. C. and the outright acquittal of the others. The prosecution case is that on the 10th of April 1954, at about half an hour after sunset, Hakim (P. W. 12), brother of Muhammad Bakhsh (P. W, 17), both being residents of Chak No. 56/K. I3. was lying on a charpoy in front of his kotha, in the same courtyard as that of his brother, when seven men entered the ihata, three being armed with guns, and asked him where Muhammad Bakhsh was. Muhammad Bakhsh happened at the time to be at the village chowk with an irriga tion patwari, and on learning that he was absent, the three armed dacoits proceeded to stand guard, one on the roof of the kotha, one in the courtyard and the third in the gall to the west of the kotha. To prevent interference by the villagers, the armed dacoits fired several shots, the sound of which attracted Muhammad Bakhsh, Mahmud (P. W. 8), Ali (P. W. 31) and Bahawala (P. W. 32) to the spot. After remaining a considerable time on the premises and looting the kothas of Muhammad Bakhsh and Hakim, the culprits made their escape. Meanwhile a crowd of villagers had collected and set out in pursuit of the dacoits. It being seen that they had gone in the direction of Chak No. 51, information was sent to the residents of the Chak in question, some of whom possessed licensed firearms. During the pursuit Wali Dad deceased, who was ahead of the others, was fired at by Zulfiqar and Rahmat Ullah accused and fell down, having been hit by as many as 129 pellets. Ali Muhammad (P. W. 9), son of Muhammad Ali, Ali Muhammad (P. W. 10), son of Hamda, and Sheena (P. W. 11) also received injuries. Meanwhile, the residents of Chak No. 51 had taken up their positions on the route followed by the dacoits, and a pitched battle ensued, in the course of wnicn two of the culprits, Daim and Sohrab, were killed. while Rahmat and Thiraj were incapacitated. On the side of the villagers Azam (P. W. 24) and Mahmud (P. W. 25) were also injured. Muhammad Amin accused is also said to have received injuries but was able to escape with his remaining companions. The occurrence was reported by Mahmud P. W. at village Kot Gholu, within the jurisdiction of Police Station Luddan, at 11‑15 p.m. After recording the report (Exh. P. 1.) Muhammad Tufail, S. H. O. Luddan (P. W. 42), went to the spot and recorded at 1‑30 a.m. the statement of Wali Dad (Exh. P. N.) which runs as follows.‑ " To‑day at about half an hour after sunset, a gun report was heard from the side of the house of Muhammad Lambardar I went to that side and learnt that the dacoits were looting his house. Muhammad Lambardar anyhow managed to collect the village people. Many village people collected in the lane, lying to the east of the house of Muhammad Lambardar. The culprits fired their guns continuously. We all shouted together that the culprits should not be allowed to escape. Thereupon the dacoits, , . . . . . left the house of Muhammad and came out from the open way lying westwards, We also followed them towards the west outside the ihata of Muhammad Lambardar. I went ahead of others in the pursuit of the dacoits. It was a moonlit night. I shouted to the village people that they should not let the dacoits escape. Two of the dacoits fired at me with their guns. One of the culprits who fired at me was of somewhat sallow complexion and the other had fair complexion. Both the culprits. had moustaches and were of medium stature and young age. Of the five remain ing dacoits, two had somewhat sallow completion, while the other three were of fair complexion. Three of the dacoits were somewhat fat and had strong build and others were of average build. All the dacoits were young. As it was a moonlit night, I can identify the culprits if they are brought before me. As I was wounded, the other village people went in pursuit of the dacoits. I was brought home on a chaypoy." The two wounded dacoits, Rahmat Ullah and Thiraj, were searched. A gathri containing clothes and ornaments Exhs. P. 2 to P. 14 and P. 19 to P. 34 was found lying between Rahmat Ullah's legs and the ornaments Exhs. P, 15 to P. 18 were in his dabb, while from the person of Thiraj were re covered the ornaments Exhs. P. 38 to P.

45. The search of the dead bodies of Daim and Sohrab yielded the ornaments Exhs. P,

46. P. 47, P. 51 and P.

52. From Daim's pocket a live cartridge and four misfired cartridges were recovered, while a rifle Exh. P. 48 was lying near his body. Another gun, Exh. P. 37. was found beside Rahmat Ullah. The three acquitted accused, Muhammad Amin, Zulfiqar and Sultan, were arrested on the 20th of April the 21st of April and the 17th of May respectively. Muhammad A min was found to bear injuries and was sent for medical examination. On the 27th of April Muhammad Amin accused led a police party under Muhammad Tufail, S. H. O., to a place within the area of Chak No. 51 and from under a clump of wan trees he produced the ornaments Exhs. P. 66 to P, 75, which were taken possession of vide memo. Exh. P. JJ. The witnesses to the recovery are Muhammad Bakhsh (P. W. 17). Sikandar (P. W. 23). Godar Khan (P. W. 29) and the Sub Inspector himself. The ornaments were latter identified by Mst. Suban (P. W. 38). wife of Muhammad Bakhsh. Mst. Zeenat (P. W, 39). his niece, and Mst. Lai 13ibi (P. W. 41), who had, somewhat ironically, deposited some of the ornaments with Muhammad Bakhsh for safety some fifteen days previously. On the 29th of April, Zulfiqar led a party including Muhammad Bakhsh, Sikandar and the Sub‑Inspector, to a place in the same vicinity, from which the gun Exh. P. 76 and the ornaments Exhs, P. 77 to P. 79 were recovered vide memo. Exhs. P. KK, and P. LL. The ornaments were identi fied by Mst. Suban, Mst. Zeenat, Mst. Lai Bibi and Mst. Salabat, (P. W. 40). Mst. Salabat, like Mst, Lai Bibi, having deposited some of the ornaments with Muhammad Bakhsh. On the 8th of June Sultan (who is also known as Punno) led a party to the same locality and pointed out a place in a clump of trees from which the clothes Exhs. P. 80 to P. 87 were recovered in presence of Hakim (P. W. 12), Muhammad Bakhsh and Ch, Ghulam Mustafa, Assistant Sub‑Inspector Police, and taken possession of vide memo. Exh. P. MM. The clothes were identified by Mst. Suban, Mst. Zeenat and Mst. Lal Bibi. On the 26th of April 1954, a parade was held at the Montgomery Central Jail by Mr. Muhammad Sadiq. Magis trate 1st Class; Montgomery (P. W. 5), for the identification of Zulfiqar and Jalla accused. As Jalla was acquitted and no appeal has been preferred against his acquittal, we are not concerned with the result of the parade so far as it relates to him, but Zulfiqar was identified by Muhammad Bakhsh. Ali (P. W. 31) and Bahawala (P. W, 32), though none of the above witnesses stated in what connection they were making the identification. Hakim (P. W. 12) wrongly pointed out one Name as being Zulfiqar. It may also be mentioned that, although he is unsupported by any other witness or by documentary evidence, Ali (P. W. 31) stated at the trial that he identified Muhammad Amin accused at a parade held in the Jhang District Jail two days before the parade at which he identified Zulfiqar in the Montgomery Central Jail. The weapons and a number of empty cartridges recovered during tile investigation were sent for examination to Mr. Abdul Majid (P. W. 22). Director, Scientific Forensic Laboratory, Lahore, who has expressed' the opinion that two of the 12 bore empty cases marked by him as Nos. 1 and 2 (Exh. P 63 and Exh. P. 59/A) were fired from the right bare of the gun Exh. P.

76. The post‑mortem examination of the body of Wali Dad was carried out by Dr. Muhammad Ismail (P. W, 1), who found thirty‑five pellet marks on the forehead, face and neck, nine on the outer aspect of the right arm and eighty‑five on the middle and outer parts of the right thigh. It appears that none of the wounds was deep, since no pellets were recovered, and in the opinion of the doctor death was due to shock. Doctor Muhammad Ismail also carried out the post-mortem examinations of the bodies of Daim and Sohrab, but it is unnecessary to recapitulate his findings. Ali Muhammad (P. W. 9), his name sake, son of Hamda, (P. W. 10), Azam (P. W. 24) and Mahmud) (P. W. 25) were medically examined by Dr. Muhammad Yusuf (P. W.2) and found to have a number of simple injuries, most of them the result of gunshots. The same doctor also examined Rahmat Ullah accused and found eleven injuries, of which Nos. 6, 9, 10 and 11 were caused by pellets and rest with some blunt weapon. All were simple. Doctor Din Muhammad (P. W. 3) medically examined Sheena (P. W. 11), Nathu (P. W. 34) (tendered only) and Thiraj appellant, the last-mentioned of whom had a gunshot wound of entrance on the lower part of the middle of the chest, from which air was escaping, and multiple small gunshot wounds on the lower part of the chest, the upper part of the abdomen and the back of the middle finger of the right hand. The distal phalanx was torn away, the phalangeal bone being broken in two pieces. Injury No. 1 was dangerous to life and No. 2 grievous. After his arrest on the 20th of April, Muhammad Amin accused was examined by Dr. Abdur Rashid (P. W. 4) and found to have the following injuries- (1) An oblique nearly oval wound, 1" x " and 3" deep, in upward direction, on the middle of the front portion of the left upper arm. (2) A nearly transverse contused wound on the lower part of the front of the left forearm. This injury had scabbed over. X-ray examination was advised for the location of bullets, but, whether or not the advice was taken, the result is not on the record. The injuries were simple and appeared to be of about four days' duration, which as Muhammad Amin was examined on the 20th of April, makes the receipt of the injuries contemporaneous with the dacoity. All the accused pleaded not guilty. When questioned regarding his injuries, Rahmat Ullah stated that on the night of the dacoity he was staying at the house of one Sher, son of Lashkar. On hearing the noise he ran with others in the direction from which it was coming and was injured by misunderstanding. Thiraj's explanation at the trial is that he was proceeding from village Basirah to Sulderah at about three hours after sunrise. Some villagers were pursuing a mad dog, at which they fired, hitting Thiraj by accident. He denied that he was injured near the place where the dead bodies of Daim and Sohrab were recovered. Muhammad Amin's explanation of his injuries, as given in the Court of the committing Magistrate, is that while he and his uncle were reaping wheat, a quarrel took place between them, in the course of which each inflicted injuries on the other. At the trial he stated "about five or seven days before my arrest I had a quarrel with my uncle who caused me these injuries with a sickle". All the accused denied that arty clothes or ornaments were recovered from their persons or at their instance, and do not lay any claim to the articles. The first question for decision is: which of the five persons now before us is proved to have participated in the commission of the dacoity ? Rahmat Ullah and Thiraj appellants fall into a separate category from the others, not merely by reason of their having been convicted, but because they were found injured at the spot immediately after the pitched battle between the dacoits and the villagers of Chak No.

51. The explanation given by them of their injuries is far from convincing, and is unsupported by any evidence. Although Rahmat Ullah alleges that he was the guest of Sher, son of Lashkar, he failed to produce him, while if Thiraj is an innocent man, who had been accidentally shot in the course of the pursuit of a mad dog, there is no reason why the persons concerned should not have appeared before the police after his arrest and cleared up the misunderstanding. Since the dacoits were under observation from the time they left Muhammad Bakhsh's house till the battle took place, the fact that Rahmat Ullah and Thiral were found injured at the place where Daim and Sohrab were killed, would in itself be sufficient to prove their participation in the dacoity, but the prosecution case against them is strengthened by the various recoveries, namely, from Rahmat Ullah the ornaments Exhs. P. 15 to P. 18 and the bundle of clothes consisting of Exhs, P, 2 to P. 14 and P. 19 to P. 34 and from Thiraj the ornaments Exhs P.38 to P.

45. Learned counsel for the defence attempted to throw doubt on the identification of the property in question, but if the recoveries are accepted as genuine, I see no reason to doubt the statements of the ladies concerned. Chaudhri Nazir Ahmad Khan argued that it is not proved that any description of the ornaments was given to the police, but if that were so, it is difficult to understand why the omission was not put to the witnesses at the trial. Moreover, neither Rahmat Ullah, Thiral, nor any of the other accused claimed the ornaments as their own. The learned Additional Sessions judge doubted the genuineness of some of the recoveries on the ground that the Sub-Inspector was guilty of padding. The relevant portion of his judgment runs- " The investigating officer, Mr. Muhammad Tufail (P. W. 42), does not however seem to have taken an intelligent interest in the investigation of the case and on the contrary has not been able to resist the temptation of padding It is in evidence that two of the dacoits were carrying the looted property . . . . It is the prosecution case that the dacoits were pursued actively and persistently so much so that they had on several occasions to turn round and fire at their pursuers. It is alleged that some ornaments were recovered from the dubbs of the injured accused as well as from the dubbs of Daim and Sohrah deceased. Clearly the dacoits had no opportunity to divide the looted property among themselves and therefore it cannot be believed that any ornaments could be found on their persons. In his anxiety to make each and every dacoit liable and responsible the investigating officer has very foolishly done this padding and shown the looted property to have been recovered from the dubbs of the dacoits who were not at ah concerned with the looted property at the time and were engaged in repelling their pursuers or to exchange fire with the people from Chak No. 51." The learned Additional Sessions judge further drew a conclusion unfavourable to the prosecution from the fact that whereas according to Muhammad Bakhsh (P. W. 17) and Gulu (P. W. 33) two of dacoits were carrying bundles on their backs, only one bundle was found at the spot. So far as the recovery of stolen property from the several accused is concerned, the learned Additional Sessions judge has obviously forgotten that before they began their retreat from Muhammad Bakhsh's house, the dacoits had robbed his kotha and that of Hakim at their leisure. There is nothing surprising in their having secreted some of the stolen orna ments about their persons at that time and it is, therefore, unnecessary to introduce the hypothesis that the property was only divided when they had been halted by the villagers of Chak No.

51. On the other hand, I see nothing improbable in the culprits' having got rid of some of the property and of their weapons, the latter of course only after their ammunition had been exhausted and the weapons had become not only incriminating but useless. The discrepancy between the account of the witnesses relating the number of bundles carried by the dacoits (the learned Additional Sessions judge might have also mentioned in this connection that according to Muhmud (P. W. 8) four men were so burdened) and the recovery of only one bundle at the spot is not in my opinion of great importance, since in the excitement and confusion attending an armed robbery and the subsequent retreat of the culprits, the witnesses may easily have been mistaken as to the number of bundles carried. I accordingly see no reason to doubt the genuineness of the recoveries from the persons or at the instance of the various accused, and I further hold that the participation of Rahmat Ullah and Thiraj in the dacoity is established by overwhelming evidence. The case of Muhammad Amin accused may next be con sidered. The recovery of the ornaments Exhs, P. 66 to P. 75 at his instance is, as already noted, deposed to by Muhammad Bakhsh, Sikandar and Gohar. P. Ws. 17, 2;s and 29 respectively, as well as by Muhammad Tufail Sub‑Inspector. In addition to the above evidence, there is one further very important circumstance against him, namely, that when medically examined by Dr. Abdur Rashid, he was found to have two injuries which, in the opinion of the doctor, "could be cause by a bullet, and the duration of which corresponded wiry the time of the occurrence", The reasons given by the learned Additional Sessions Judge for acquitting these accused are as under :‑ " The other two accused Muhammad Amin and Sultan were not identified by anybody. Muhammad Amin had two injuries on his person which according to doctor could be caused by a bullet but he does not seem to be quite sure. But even if it may be accepted that these were caused by a bullet then certainly this accused was not present in the affair in dispute because according to the prosecution none of the licence‑holders of Chak No. 51 used a rifle and for that reason I am not prepared to accept that this accused was injured in the firing which was exchanged between the dacoits and the license‑holders of Chak. 51." In the first place the learned Additional Session Judge is, in my opinion, not justified in presuming that the doctor is in doubt as to the cause of the injuries. In merely stating that they could be caused by a bullet instead of making the positive assertion that they were so caused, the doctor was only acting with proper caution, and his conduct in advising an X‑ray examination for the location, of a bullet shows him to have been reasonably certain it his own mind of how the injuries were inflicted. Moreover, although according to Muhammad Amin himself his injuries were caused by his uncle with a sickle, it is significant that not only was no evidence led in support of this assertion but the defence did not question the doctor as to whether the injuries could be caused in the manner alleged by them. Further, even though none of the villagers of Chak No. 51 possessed a licence for a rifle, that would by no means prove that no rifles were used, and. taking all the circumstances into consideration there is no doubt in my mind that Muhammad Amin received his injuries in the course of the battle that took place between the dacoits and the villagers, a fact which, taken together with the recovery of a part of the stolen property at his instance, fully prove his participation. The case against Zulfiqar accused rests on the evidence of Hakim (P. W. 12). Muhammad Bakhsh (P. W. 17), Ali (P. W. 31) and Bahawala (P. W. 32) that he took part in the dacoity, and the recovery at his instance of the ornaments Exhs. P. 77 to P. 79 and of the gun Exh. P.

76. At the trial Hakim (P. W. 12) and Muhammad Bakhsh (P. W. 17) pointed out Zulfiqar and Rahmat Ullah accused as the persons who fired at Wali Dad. Ali made no such definite statement, merely deposing that at a distance of about twenty‑five karams from Muhammad Bakhsh's house two of dacoits fired at Wali Dad, but the witness went on to say that he later identified Zulfiqar at an identification parade in the Montgomery Central Jail. He also alleges that at the time of the parade he named Zulfiqar as one of the persons who had committed the dacoity. Bahawala (P, W. 32), like Hakim and Muhammad Bakhsh, definitely pointed out Zulfiqar and Rahmat Ullah as the persons who fire at Wali Dad, and he made the same statement as Ali with regard to the identification parade, The allegation of the above‑named witnesses that at this identification parade they not only pointed out Zulfiqar bualso mentioned that he was one of the men who had taker part in the dacoity is not supported by the memorandum of the proceedings (Exh. P. QQ) prepared by Mr. Muhammad Siddiq. With respect to Ali and Muhammad Bakhsh it in merely recorded "Ali, son of Dilawar, P, W. was called in. He was asked to identify the accused Zulfiqar. He pointed out towards Zulfiqar at No. 4 and correctly identified him Muhammad, son of Samad (sic) P. W. was then called in he pointed towards the accused at No. 4 and correctly identified him". To the same effect is the note recorded with respect to Bahawala P. W. Ch. Nazir Ahmad cited the well‑known case Lal Singh v. King Emperor (A I R 1925 Lah, 19) in which it was held by a Division Bench of this Court that the mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated, and that it might merely mean that the witness happens to know that accused person. With great respect I agree with the above remarks, but in the same ruling the learned Judges called attention to another important principle, namely that the main evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to point out a particular accused person and the details of the part which that accused took in the crime in question. Although, therefore, the statement of Ali, Muhammad Bakhsh and Bahawala Hakim P. W. wrongly pointed out one Name instead of Zulfiqar in Court relating to the part played by Zalfiqar cannot be said to be in any way strengthened by their pointing this accused out at the parade, it is equally true to say that those statements are not weakened by the omission to specify at the parade the part played by Zulfiqar and the circumstances in which the witnesses had previously seen him. The real question for decision is whether the statements of the witnesses in Court that Zulfiqar was one of the dacoits can be relied upon, and in the circumstances I am of the opinion that they can. Ch. Nazir Ahmad called attention to the statement of Mahmud (P. W. 8) that although he remained at the spot for two or three hours he could not identify any of the dacoits, but Mahmud's eyesight does not appear to have been tested at the trial, and it cannot be said whether his vision was normal or defective. In the circumstances, his failure to identify any of the assailants cannot reasonably be said to throw doubt on the identification made by the other witnesses. Ch. Nazir Ahmad also called attention to the fact that according to one account Muhammad Bakhsh and the other witnesses remained outside the ihata, a version which he rightly considered more likely than that of Ali (P. W 31) that Muhammad Bakhsh was inside his courtyard and that Ali and Bahawala jumped over the wall and joined him, and argued that since the witnesses were outside, they could not possibly identify the dacoits who were inside. This conten tion does not take into consideration that not only did the dacoits spend a considerable time on the premises but after looting Muhammad Bakhsh's kotha, the culprits came out, entered the kotha of Hakim, and began to ransack it. While the dacoits were proceeding from one kotha to the other, the witnesses had an opportunity of seeing them, and again had such an opportunity when the dacoits finally retreated. The statements of the witnesses that they identified Zulfiqar are corroborated by the recovery of the ornaments Exhs, P. 77 to 79, identified as part of the stolen property, and of the gun Exh. P. 76, from which the empty cartridges Exhs. P. 59/A and P. 63 are proved to have been fired. With respect to the former cartridge there appears to be some confusion, since, though I have carefully gone through the statement of Muhammad Tufail Sub‑Inspector, I can find no reference to this cartridge and no indication as to where it was found. The other cartridge, Exh. P, 63, was, however, found at Muhammad Bakhsh's, house, and the circumstance that an empty cartridge found at the spot is proved to have been fired from a gun later recovered at the instance of Zulfiqat goes far to substantiate the allegation of the witnesses regarding his participation. The learned Additional Sessions judge has not, in my opinion, appreciated the weight of the evidence against Zulfiqar accused. He was unduly influenced by the failure of the witnesses at the identification parade to state the cir cumstances under which they had seen him, while he has rejected the statements of the witnesses in Court, that Zulfiqar was one of the culprits, on what appear to me to be insufficient grounds, having again failed to appreciate the significance of the recovery of the ornaments and of the gun. I accordingly hold that Zulfiqar accused is clearly proved to have taken part in the commission of the dacoity. There remains Sultan accused. The case against him rests on the recovery of the clothes Exhs. P. 80 to P. 87 at his instance, a recovery deposed to by Hakim, Muhammad Bakhsh and Ch. Ghulam Mustafa A. S. I. Ch. Nazir Ahmad argued that, taking the view most favourable to the prosecution, the recovery in question would only establish an offence under section 411, P. P. C. against Sultan, but in the circumstances I cannot agree It must be borne in mind that Sultan is not a local resident, but belongs to Chak No. 216 in District Jhang. Accepting the recovery as genuine, and I see no reason why it should be doubted, it was for Sultan to explain how he came to learn: where the property in dispute was hidden, but he E has failed to give any explanation, contenting himself with alleging that he was at his house throughout. The place from which the recovery was made is also of the greatest importance in determining the extent of Sultan's guilt. In my opinion, it cannot be a mere coincidence that Sultan was able to point out a part of the stolen property concealed in the vicinity of the scene of the dacoity, parti cularly taking into account that he himself belongs to all distant Chak. To my mind no conclusion is reasonably possible except that Sultan himself took part in the dacoity. The next question for decision is the nature of the offence committed by the five accused who are proved to have taken part in the dacoity. One of the most important aspects oz this question is whether the death of Wall Dad constitutes the offence of murder. Chaudhri Nazir Ahmad Khan called attention to the medical evidence, according to which (1) none of the pellets appeared to have entered the body ; (2) death was due to shock. On the basis of these facts learned counsel strenuously argued that the infliction of the it durries found oil Wali Dad did not amount to murder, but 1 am unable to agree. Although death was due to shock, that shock was.1 as stated by the doctor, "caused by gunshot wounds". In j other words, Wali Dad's death was the direct result of the gunshot injuries inflicted on him. Chaudhri Nazir Ahmad Khan contended that the shots must have been fired from sc long a range that the assailants could not have intended to kill their pursuers, their sole purpose on the contrary being to deter the deceased and his companions from further pursuit. Apart from the fact that the interpretation placed by learned counsel on the assailants' action credits them with a decree of humanitarianism not usual associated with dacotts, there is no suggestion that Wall Dad was suffering from any disability which would render him more than usually suscep tible to shock, the doctor stating on the contrary that all the organs of the body were normal. On the principle, therefore, that a man must be deemed to intend the consequences of his own act, the assailants are guilty of murder. To put it more technically, the act committed was so imminently dangerous that the person or persons committing it must have known that it would in all probability cause death or such bodily injury as was likely to cause death, it being further clear that he or they acted without any excuse for incurring the aforesaid risk. In considering the question of the offence committed by Wali Dad's assailants, the learned Additional Sessions judge remarks‑"The offence under section 396, F P C. does (sic.) seem to have been established because Wali Dad has not beet: murdered. The injuries on his person were simple arc: these were not sufficient in the ordinary course of nature to have caused death nor was the death the result of these injuries. The injuries were not likely to cause death. The man had died merely on account of shock and therefore t: does not fall within the definition of murder". This argument of the learned Session Judge has been dis cussed and refuted above, and it need only be added that it is difficult to reconcile with the next following sentence in the judgment:-- "The act of rte accused would definitely amount to an attempt to murder as whoever he was should be invested with the knowledge that he was likely to cause death by firing at his victim". It is somewhat extraordinary that the learned Additional Sessions Judge should nor have realised that the act of the accused amounted to more than an attempt to murder, the alleged "attempt" not retraining incomplete but eventuating in the death of the deceased. For the above reasons I told that in firing at Wali Dad, Zulfiqar and Rahmat Ullah accused are guilty of the offence of murder. In view of the above finding the contention of the state that all those proved to have participated in the commission of the dacoity are guilty, of an offence under section 396 P. P. C must prevail. It being established that the death of Walt Dad was the result of the offence of murder, and it being further proved that the murder was committed by one of five or more persons who were conjointly committing dacoity, the only remaining ingredient of an offence under section 396, P. P. C. is that the murder should be committed in the course of the commission o: the dacoity. Chaudhri Nazir Ahmad Khan attempted to argue that as the assailants were making their escape at the time of the death‑ of Walt Dad, the offence of dacoity must be deemed to have been completed before Walt Dad received his injuries; but this contention is against the whole weight of authority, and cannot be accepted. For example, in Monoranjan Bhattacheriya v. Emperor ('A I R 1932 Cal, 818) it was held by a Full Bench of the Calcutta High Court that in order to commit dacoity it is necessary not only that the dacoit should get the booty away but that he should get away with the booty and that so long as he is being pursued in hot haste after the act of the dacoity has just been committed and is in flight for the purpose of completing his offence the. dacoity is not complete. The learned judges went on to hold that where one of the dacoits stabbed and killed a mail pursuing him the murder was committed while committing dacoity. Similarly, in Punjab Singh Ujagar Singh v. Emperor (A I R 1933 Lah. 977) a Division Bench of this Court held that where, in attempting to carry away the stolen property, one of the dacoits commits a murder within a very short time of the commission of the dacoity, the murder must be held to have been committed "in the commission of the dacoity within they meaning of section 396, P. P. C." The same view was ex‑pressed in Sundar v. King‑Emperor (A I R 1925 Lah. 142 (2)). All the ingredients necessary for the commission of an offence under section 396, P. P. C. are thus made out, and it need only be added that in order that all the persons conjointly committing a dacoity should be guilty under section 396, P. P. C., it is not necessary that they should sharei a common intention to commit murder, or even that they should have known that murder was likely to be committed. On the contrary, as laid down by my learned brother Shabir Ahmad in Raja v. The Crown (Pak. L R 1954 Lah. 93=P L D 1954 Lah. 201) section 396, P. P. C. could not have been intended to apply to cases in which section 149 of that Code can be invoked for making each dacoit liable for the murder committed by one of them, but will apply where the murder committed is neither in furtherance of the common object of the dacoits nor a result which was known to be likely. In the present case the utmost concession that can be made to the guilty accused is that they may not have known that murder was likely to be committed, but they are never theless guilty of an offence under section 396, P. P. C. The only question remaining is that of sentence. Although section 396, P. P. C. provides that every one of the culprits shall be punishable with death, transportation for life, or rigorous imprisonment for a term which may extend to ten years, it was not, of course, the intention of the legislature that persons found guilty of murder should be sentenced only to imprisonment. On the contrary, it was held by the Rangoon High Court in Emperor v, Nga Tha Hmwe (A I R 1935 Rang. 504) that section 396 of the Penal Code was expressly enacted in order to punish with the utmost severity of the law crimes of this very description. On the other hand, taking into consideration that Wali Dad, though his death was the result of the offence of murder, was fired at from such a long range that his death was due to shock and not to injury to any vital organ, I consider that the ends of justice will be met by the punishment of transportation for life, and would sentence the five convicted accused, Rahmat Ullah, Thiraj, Zulfiqar. Muhammad Amin and Sultan, accordingly. In conclusion I may add that, even if I had not been firmly of the opinion that all the above five accused were liable under section 396, P. P. C. I would have considered this eminently a fit case for sentencing them under section 395 P. P. C, to the maximum sentence provided by law. Of the band of dacoits who took part in the commission of the offence, no fewer than three were carrying firearms, and the mere fact that, in all probability overawed by such a display of force, neither Muhammad 'Bakhsh nor any of those who gathered at the spot dared to interfere, it being therefore unnecessary for the culprits to use their weapons at that stage, does not in any way lessen their culpability. Even if, there fore, it were to be held that the death of Wali Dad did not amount to murder, and that the offence was one under section 395, P. P. C., I would have considered a sentence of transportation for life to be the only appropriate one in the circumstances. PER SHABIR AHMAD, J.‑I agree but add just a few words. It may appear strange that dacoits who were attempting to escape after committing dacoity should be guilty of an offence under section 396 of the Pakistan Penal Code by reason of the fact that one or two of them committed a murder and 1 would, therefore, explain the position. Broadly speaking the offence of dacoity is committed when five or more persons commit a robbery and one has to determine whether at the time when two of the dacoits fired at one of their pursuers a robbery was in progress. Robbery is defined in section 390 of the Pakistan Penal Code ; that part of which is relevant for the present purposes, reads as follows :‑

390. In all robbery there is either theft or extortion. 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 property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. That the object of the intruders was theft is manifest from the fact that they removed some property from the house they entered into. After committing the theft the culprits were escaping with the property when the villagers pursued them. When they were running away the culprits had the desire to escape capture but the fact that they kept the stolen property proves that their object was also to take the property with them, because if keeping the property were not their object they would have thrown it away as carrying it could not but impede their progress. It follows therefore that at least one of the objects of shooting at the pursuers was to facilitate the carrying away of the stolen property and an offence of robbery was committed. The persons who parti cipated in the robbery were more than five and the offence became a dacoity. Wali Dad who was one of the pursuers was murdered in the course of the dacoity and section 396 of the Pakistan Penal Code is applicable to the facts of the case. A word about Sultan whose conviction under section 396 of the Pakistan Penal Code has been recorded on the sole evidence that he gave information which led to the recovery of a part of the stolen property. Chaudhri Nazir Ahmad. Advocate who argued the case at length contended that the recovery could at worst prove a case of receiving stolen property against Sultan but this argument cannot be accepted unless some of the relevant circumstances are overlooked. It is established that the property recovered at the instance of Sultan lay buried at no great distance from the place where the property recovered from some accused who were con clusively proved to be dacoits lay buried. This circumstance in my view is, in the absence of an explanation of which there is none, sufficient for raising the presumption that the property recovered at the instance of Sultan was buried where it lay by one of the dacoits. Now Sultan does not say that his knowledge of the place where stolen property lay buried was either entirely innocent or that of a person who had merely received stolen property and buried it to avoid its detection and what is to be determined is what offence the possession of the stolen property proves. I am not unmindful of the fact that there being no law of pleadings in criminal cases a person is not to be convicted of a more serious offence if he cannot show either that he is innocent or guilty of a comparatively minor offence, but I am clearly of the view that if the Court comes to the conclusion that possession of stolen property discloses an offence against a person the nature off the offence is to be determined by all the circumstances. If Sultan were a person who had innocently come by his knowledge of the place where the stolen property lay he should have taken the Court in confidence, and if he had done nothing worse than receiving the stolen property I would have expected him to say so when he should have known that his reticence might result in the extreme penalty being exacted from him. The circumstances show that the property recovered at his instance was buried at the place it lay by Sultan himself and that he had buried it soon after the dacoity just as the other dacoits had buried the property they had succeeded in removing from the house they looted, These circumstances prove that Sultan was one of the dacoits and the contention of his learned counsel that recovery of stolen property is generally considered to prove no more than an offence under section 411 of the Pakistan Penal Code, can be of no avail to him., A. H. Order accordingly.