P L D 1963 (W (PLP)

6. The question whether Pershotamdas received an injury and succumbed to it is not disputed. The evidence of Dr. Shamsuddin, Exh. 49, also proves that the death of the deceased was on account of the injury sustained by him. The evidence of Shrimati Sawatri, Wazir and Chandumal also proves beyond doubt that the death of the deceased was on account of the injury received by him.

7. The learned counsel for the appellant and the respondent raised a preliminary issue and argued that there was non?compliance in the case, of the provisions contained in section 309, Cr. P. C. The argument advanced by them was that the assessors had not been separately questioned on each of the charges framed against the appellant and the respondent. They relied upon Muhammad Sajjad v. State (P L D 1961 S C 13). They also argued that the non-?questioning of the assessors on all the charges separately had caused an illegality in the trial in that it had affected the question of credibility of the witnesses and had therefore, rendered the trial illegal. The learned Assistant Advocate‑General who appeared for the State contended that the view of the Supreme Court, as propounded in the case referred to above was not that the assessors should be questioned on each charge separately. The argument of the learned Assistant Advocate‑General was that if a question put to the assessors could be construed to be a question on all charges, then a substantial compliance of section 309, Cr. P. C. can be said to have been made. According to him, the view of the Supreme Court was that the assessors must be questioned in respect of all the charges. Their Lordships had not said that in doing so separate questions on each charge must be put to the assessors. One single question put to the assessors may amount to questioning the assessors on all the charges collectively. He has in support of his view relied upon a Full Bench case Tooh v. The State (P L D 1960 Kar. 1). He has also invited our attention to the cases of Abdul Samad v. State (P L D 1962 Kar. 573), Allah Rakhio v. State (P L D 1962 Kar. 543) and Ahmad Khan v. State (P L D 1961 Lah. 543). In all these cases the view taken by the learned Judges has consistently been that the assessors should not necessarily be put separate questions on each charge but they must be questioned on all charges. It is immaterial, according to the view expressed in these cases if the questioning of the assessors on all charges is on account of one single question or several questions. The question put to all the assessors in this case was : "You have heard the evidence, what is your opinion. Are the accused guilty or not." All the assessors to this question have said that the accused are guilty.

8. The case on which reliance has been placed by the learned counsel for the appellant and the respondent is clearly distinguishable from the present case. In that case specific questions in respect of the charges under sections 302 and 302/109 had been put. No question of a general character involving all the charges had been put to the assessors at all. It was in those circumstances that their Lordships of the Supreme Court found a total omission of a question in respect of the charge under section 323/34, P. P. C., having been put to the assessors. This case is not of that type. The question put to the assessors in this case clearly indicates that the question put was in respect of all the charges on which the accused had been tried. We are, therefore, clearly of the view that this case is covered by the, cases relied upon by the learned Assistant Advocate‑General and no non‑compliance of section 309, Cr. P. C., can be said to have been made in this case. We, therefore, do not accept the preliminary objection raised by the learned counsel for the appellant and the respondent specially when question of prejudice to the accused has not been agitated.

9. The only question therefore that needs to be decided in this matter is whether the appellant Mitho and respondent Abdul Jabbar were responsible for causing the injury to the deceased which resulted in his death. The main evidence on which the prosecution have relied is the evidence of two eye‑witnesses, Shrimati Sawatri, P. W. 5, and Wazir, P. W.

8. It is not contended that Shrimati Sawatri and Wazir Ali were not the persons living in the house. It is also not contended that they could not have seen the incident. Their evidence consistently is that they saw two persons getting into the house on 12th February 1961 at about 8 p.m. Their evidence also is that one of them was armed with a dagger and the other was armed with a revolver. They also saw that the person armed with a dagger placed it on the chest of Pershotamdas and demanded the keys of the safe from him. They also state that Pershotamdas did not give the keys but instead pushed the man with the dagger aside and started raising cries. Their evidence also shows that Pershotamdas was then thrown on the ground and the person armed with a dagger thrust it into his abdomen. Their evidence also proves that the person armed with a revolver then pointed out his revolver at these two witnesses and told them to remain quiet. The person with the revolver also forced them to get into a room with a view to see that they did not raise any cries or that if they did raise any cries nobody could hear them and come to the scene. Their evidence also is that they saw these two persons going on the second floor of their house. Their evidence also shows that Chandumal who had come to the scene was told to bring people in aid with a view to apprehend the culprits who were hiding themselves on the second floor. They also depose to having seen these two persons being secured by the police from the room on the second floor. They distinctly identified these two persons to be persons who had come into their house and caused an injury to the deceased, Pershotamdas.

10. The evidence of these witnesses stands fully supported by the evidence of Chandumal, P. W.

2. He is a person who lives in the neighbourhood and had come on the cries. He was informed by Shrimati Sawatri and Wazir about how the two persons had come into their house and caused an injury to Pershotamdas. He was also informed of how the two persons had gone on the second floor. Chandumal on getting the information from Shrimati Sawatri and Wazir went to the police?station which was at a distance of three furlongs from the scene of offence and brought the police to the scene. It was in his presence and the presence of Shrimati Sawatri and Wazir that the appellant and the respondent were secured from a room on the second floor. A dagger from Mitho and a revolver from Abdul Jabbar were also secured in their presence. The evidence of Chandumal further shows that the appellant and the respondent had a short while before the incident made enquiries from him about the house of the deceased.

11. The evidence of these witnesses stands further supporter by the evidence of Shahan, P. W. 10 and Muhammad Usman, P. W.

15. Both these witnesses also in one voice say that the appellant and the respondent were secured from a room on the second floor of the house of the deceased and that a dagger was secured from Mitho and a revolver from Abdul Jabbar. Munawwar Hussain, P. W. 14, A. S. I. has also supported the case of the prosecution fully in that the appellant and the respon?dent were secured from a room on the second floor of the house of Pershotamdas and a dagger and a revolver were secured from them. Muhammad Usman had also prepared mashirnama, Exh. 34, of the arrest of the appellant and the respondent and also of the securing of the dagger and the revolver from them respectively. All these witnesses are completely disinterested and nothing has been brought out from their evidence on record to suggest that they would implicate these two persons falsely. No explanation of whatever sort or kind has been given by these two persons for hiding themselves in a room on the second floor of the house of Pershotamdas. No explanation has also been given about the presence of these two persons on that day in Shikarpur. No explanation has also been given as to why the inquiries were made by them from Chandumal about the house of Pershotamdas. The evidence of all these witnesses appears to be convincing, cogent and inconsistent and we see no‑ reason for disbelieving it.

12. The evidence of the witnesses is further supported by the evidence of Ghulam Murtaza, P. W. 3, Ghulam Murtaza was the proprietor of Sind Zamindar Hotel at Shikarpur. His evidence shows that the appellant, the respondent and Gopaldas had taken tea in his hotel on the day of the incident a short while before the incident occurred. He did not know Mitho and Abdul Jabbar before the incident. He was, therefore, put to the indentification test on 14th February 1961, in presence of Head Munshi arid Third Class Magistrate Sahibdino, P. W.

4. Sahibdino had prepared mashirnama of the identification test which is Exh.

14. Ghulam Murtaza and identified these two persons in the test. The evidence of Ghulam Murtaza has also not been discredited and we see no reason for not accepting it.

13. The evidence is also supplemented by the dying declaration of the deceased recorded by Muhammad Usman, P. W.

15. This dying declaration has been brought on record as Exh.

46. The dying declaration itself shows that it was not completed as the deceased before he could make a full dying declaration became unconscious. The little of the dying declaration that we have on the record clearly shows that two persons had entered the house of the deceased, one of them being armed with a dagger and the other with a revolver. The dying declaration also gives the details as to how the injury to the deceased was caused by the person who was armed with a dagger.

14. The evidence in short on the record is absolutely above board and has proved the offences with which the appellant and the respondent, were charged beyond any reasonable doubt.

15. Since the appellant has been convicted only under sections 302 and 452, P. P. C. and no appeal against his acquittal in respect of the charges of which he has been acquitted has been Tiled, we cannot. take action and convict him of those charges for which he has been acquitted. The evidence, however, on record has established fully the offences of which the appellant has been convicted. We, therefore, see no substance in his appeal and dismiss it accordingly. We also see no mitigating circumstances in the case and therefore confirm the sentence of death passed on the appellant.

16. So far as the case of respondent Abdul Jabbar is con?cerned, the learned Additional Sessions Judge who has acquitted him has not disbelieved the evidence brought on record against him. In fact he has believed the whole evidence. We have also gone through the evidence ourselves and we also cannot see any reason why the evidence brought against him should not be believed. The evidence against the appellant Mitho and the respondent Abdul Jabbar is exactly the same. The learned Judge has, however, acquitted the respondent on considerations which appear to us to be absolutely without foundation. The learned Judge in believing the evidence against these two persons has stated as under :‑ . "It is proved by overwhelming evidence that the accused were caught with their weapons on the second storey of Pershotam?das's house. The only persons who were sitting in the house of the deceased were his wife Sawatri and his boy servant Wazir, and they have stated categorically that these accused are the same men who had come in the house and attempted to rob Pershotamdas and accused Mitho stabbed him in the abdomen. On evidence it is clearly proved that accused Mitho stabbed deceased Pershotamdas, who died on account of the injury. Accused Mitho is therefore guilty of murder."

17. In dealing with the case of Abdul Jabbar this is how the learned Judge has given him the benefit of doubt in respect of the charge on which he has acquitted him :‑ "The next point that requires consideration is whether accused Abdul Jabbar is guilty of murder by virtue of section 34, P. P. C. In my opinion he is not. Both the accused had gone to rob Pershotamdas and not to murder him. Their main object was robbery and not murder. Accused Jabbar had not asked Mitho to stab Pershotamdas. He himself was armed with a revolver. If he had the common intention with accused Mitho to kill Pershotamdas, lie could as well shoot him with his pistol., but he did not do it: When accused Mitho fell down deceased Pershotamdas on his refusal to give him the keys, accused Abdul Jabbar could not have known that Mitho would thrust his dagger in the abdomen of deceased Pershotam?das. He may well be under the impression that Mitho was threatening him to take the keys from him. I will not hold accused Jabbar had the common intention with accused Mitho to murder the deceased. He is not guilty of murder. The other point that requires consideration is whether both the accused attempted to rob the deceased. On refusal by deceased Pershotamdas to give the keys, accused Mitho fell down the deceased and immediately stabbed him with a dagger. The stage had not yet reached the stage of attempt. This stage was still the stage of preparation. If the accused had taken the keys from the deceased and made an effort to find out the property and tried to open boxes, safe or the cupboard to take the property and if at that stage, their attempt had been foiled by circumstances beyond their control, their act would have amounted to an attempt and they would have been guilty of attempt to commit robbery, but this is not the case here. The accused cannot therefore be convicted for attempt to commit robbery punishable under section 393, P. P. C. The learned A. P. P. frankly concedes that the act of the accused in demanding the keys from the deceased did not amount to commit robbery. He concedes that the accused cannot be convicted under section 393, P. P. C. On evidence discussed above, charge under sections 302 and 452, P. P. C. is proved against accused Mitho and charge under section 452, P. P. C. and 19‑E of the Arms Act is proved against Abdul Jabbar. He does not possess the licence for the pistol." The argument of the learned Judge appears to be totally erroneous and without any foundation both on law as well as on facts. It is impossible in the circumstances of this case to even remotely think that this case is not of an attempt to commit r robbery but is merely of preparation to commit robbery. The evidence in the case which has been accepted by the learned Judge shows that these two persons entered the house both armed. It also shows that Mitho who was armed with a dagger placed his dagger on the chest of the deceased and demanded the keys. It is also in evidence that both the appellant and the respondent on Pershotamdas refusing to give the keys and on his raising cries threw him on the ground and the man with a dagger thrust the dagger in the abdomen of the deceased. The learned counsel for the appellant got this in the cross‑examination from Shrimati Sawatri "I have stated to the police, the Magistrate and the lower Court that the man with pistol held my husband with his arm and the man with a dagger gave him a dagger blow. I have stated to the police and the L. C. that the dacoits threatened us to get into the room or else they would kill us." The part that has been played by both the appellant and the respondent in demanding keys from the deceased clearly establishes that it is a case of an attempt to commit robbery and not of preparation to commit robbery. If this cannot be the case of an attempt to commit robbery we cannot see how any other case can come within the four‑corners of an attempt to commit robbery. The view of the learned Judge, therefore, in respect of the case not being a case of an attempt to commit robbery but of preparation to commit robbery in our opinion is wholly erroneous and perverse. So far as the case in respect of the charge under section 392/34, P. P. C. is concerned the view of the learned Judge is that the common intention of the appellant and the respondent was to commit robbery and not murder. According to him, Mitho alone, therefore, would be guilty of murder and not respondent Abdul Jabbar. It appears to us that the learned Judge has either not read section 34 of the Penal Code or has completely misunderstood what is contained in it. Section 34 reads as under "

34. 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." A bare reading of the section makes it abundantly clear that it is the furtherance of the common intention and not the common intention of all the persons that makes each one of them liable. Whatever may have been the common intention of these two persons, it is the criminal act which is committed in furtherance of that common intention that makes Abdul Jabbar liable. The common intention of appellant Mitho and Abdul Jabbar may have been to commit an offence of robbery but it is not that common intention which will make both liable under section 34 of the P. P. C. It is the act which is done in furtherance of the common intention that will make them liable under section 34, P. P. C. It is quite clear from the evidence on record that the common intention of the appellant and the respondent being to commit robbery the criminal act of committing the murder of Pershotamdas by Mitho was obviously in furtherance of the common intention of committing robbery. It was with a view) to take keys of the safe from Pershotamdas that initially Mitho had placed his dagger on his chest and respondent Abdul Jabbar pointed out his revolver at the witnesses. It is with the intention of committing robbery that the person was thrown on the ground and the dagger was thrust into his abdomen. It is entirely a different thing if robbery is not committed. The reason for not committing robbery was not that they had given up the idea of committing robbery but because things turned out to be otherwise than were anticipated by them. They never anticipated cries being raised. They also did not anticipate people responding to the cries and coming up to the house of Pershotamdas and apprehending them. What they thought was that by committing the murder of Pershotamdas they would succeed in getting the keys and then taking away the property make good their escape. The learned Judge, therefore, in our view, has been clearly in error in misapplying the provisions contained in section 34, P. P. C. We are clearly of the view) that respondent Abdul Jabbar is guilty of the offences committed under sections 393/397, 449, 452 and 302 read with section 34,h P. P. C. He has already been convicted of the offences under section 452, P. P. C. and 19‑E of the Arms Act and sentenced to 3 years and one year's rigorous imprisonment respectively. We, however, hold respondent guilty also under sections 393/397, 449 and 302/34, P. P. C. and sentence the respondent to rigorous imprisonment for 7 years under section 393/397 and to rigorous imprisonment for five years under section 449, P. P. C. We also convict the respondent under section 302/34, P. P. C. and sentence him to be hanged by neck till he be dead. The sentences of imprisonment shall run concurrently if the sentence of death passed on the respondent is not executed.

18. In view of what has been said above, the appeal of the State under section 417, Cr. P. C. against respondent Abdul Jabbar stands allowed. K. B. A./A. H. Appeal dismissed.