' This appeal is directed against the judgment, dated 9-10-2003 passed by the learned Additional Sessions Judge, Pishin, whereby the appellants were convicted under section 392, P.P.C. And sentenced to undergo R.I. For six years each along with a fine of Rs,30,000 each or in default thereof to further undergo imprisonment for seven months S.I. Each. Benefit of section 382-B, Cr.P.C., was, however, extended to the appellants.
2. The events, giving rise to the charge against the appellants, were as follows:--- ' On 22? 2003 report was lodged by one Muhammad Ayub son of Abdul Jabbar through Habibullah son of Muhammad Ali, with Levies Headquarter District, Pishin, wherein, it was alleged that on the said date, the complainant, while on his way from his house to Killi Atozai in truck bearing Registration No,LSB-3727, was intercepted by the appellants along with absconding accused persons namely, Pai-ud-Din, -Shahabuddin and two unknown sons of Khudai Dost. He was alighted from the truck, beaten and the truck was driven away. It was further alleged that accused persons before taking away the truck had smashed wind screen and glasses thereof besides causing other damage. On the stated allegation formal F.I.R. Bearing No,24/2003, dated 22-3-2003, was registered under section 17(3) of the Offences against Property (Enforcement of Hudood)
Ordinance, 1979 and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegation levelled against the accused persons produced seven witnesses, in all P.W.1 Muhammad Ayub, while reiterating the version contained in the F.I.R. Deposed that as he reached near the house of accused/appellant Haji Khudai Dost, suddenly he was intercepted by accused Shamsuddin, who was driving a tractor. No sooner,- -he stopped the truck then the accused persons, namely, Shahabuddin, Shamsuddin and Shakaruddin, alighted him from the truck whereas Khudai Dost, Salahuddin and Pai-ud-Din, smashed wind screen thereof by giving Danda blows. Shahabuddin, Shakaruddin and Shamsuddin also gave him beating with fists and kicks. Thereafter, accused persons snatched key of the truck from him and Salahuddin, drove the same away. P.W.2 Habibullah, deposed that on the day of occurrence he was present in his house when Muhammad Hayat, brought Muhammad Ayub, who told him about the incident whereupon he i,e, P.W.2 lodged written report with the Tehsildar. P.W.3 Nazeer Ahmed, Levies Khasadar, is a marginal witness of the recovery memo. Exh.P/3-A vide which the truck in question was recovered from the house of Haji Khudai Dost. P.W.4 Dr. Naseebullah, Medical Officer, District Head Quarter Hospital Pishin, had on 23- 3-2003, examined injured Muhammad Ayub and found as under:--- "Complaining of pain on the right scapula complaining of pain on the right lumber region. There are no any visible injuries on both regions. Nature of wound. Simple. Duration Fresh."
' He produced the Medical Certificate as Exh.P/4-A. P.W.- Muhammad Hayat, is an eye-witness of the occurrence. He corroborated the statement of P.Ws. 1 and 2 in material particulars. P.W.6 Muhammad Ashraf, is another eye-witness of the occurrence. He, too, in pith and substance corroborated the statement of other eye-witnesses. P.W.7 Maqbool Anwar, is the Investigating Officer of the case.
5. On the conclusion of the prosecution evidence the appellants were examined under sections 342 and 340(2), Cr.P.C. In their above statements the appellants denied the charge and pleaded innocence. The stand taken by them in defence was that about three years ago a sum of Rs,1,50,000 was borrowed by Saadullah brother of the complainant from Salahuddin and on demand for rendition of accounts and to pay the money back, the instant case was foisted on them. They also got examined four witnesses namely, Najeebullah, Bari Dad, Muhammad Kareem and Shah Zaman in their defence.
6. After hearing arguments of the learned counsel for the parties, the learned trial Court, convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.
7. I have heard M/s. M. Zafar, Advocate, learned counsel for the appellants, Mr. Kamran Murtaza, Advocate, learned counsel for the complainant, Sheikh Ghulam Ahmed, Advocate, learned counsel for the State and have also perused record of the case, with their assistance, minutely.
8. Mr. M. Zafar, Advocate, learned counsel for the appellants has contended that the instant case was the aftermath of civil transaction. A sum of Rs,1,50,000 was borrowed by Saadullah brother of the complainant from appellant Salahuddin - and on demanding the money back the present case was foisted on the appellants. All the eye-witnesses were interested and related inter se, therefore, their statements could not have been believed. Alternatively, lie pleaded that if, at all, the prosecution evidence is believed even then the offence of robbery was not made out as appellant Salahuddin had simply drove away the truck. Neither he had beaten the complainant nor it was proved that. He was sharing common intention with other accused persons, hence, in the absence of specific charge under section 34, P.P.C. Or evidence to that effect he, at the most, was liable for the offence of theft culpable by section 380, P.P.C. As regards appellant Haji Khudai Dost, he submitted that he is an old man of 68 years and only evidence against him is that while there was a quarrel between the complainant and other accused persons he had smashed wind screen of the truck and that the truck after the occurrence was found parked in his house, thus. He, at the most, was guilty of committing "mischief".
9. Mr. Kamram Murtaza, Advocate, learned counsel for the complainant, on the other hand, while controverting the contention raised by the learned counsel for the appellants submitted that since the complainant was intercepted by all the accused persons, he was beaten and truck was forcibly snatched away from him, therefore, the appellants were guilty to commit the offence of robbery.
He, in answer to the query as to whether if beating was given by other accused persons, as to how appellant Salahuddin, who had allegedly taken away the truck only, was guilty to commit the offence of robbery, instead of theft, submitted that since all the accused persons were sharing common intention with each other to commit the offence, therefore, they were vicariously liable for the offence.
10. Sheikh Ghulam Ahmed, Advocate, learned counsel for the State, has submitted that so far as charge regarding taking away the truck by appellant Salahuddin is concerned, it stands proved on record through the statement of P. Ws. As well as the recovery of truck from the house of Haji Khudai Dost. He, however, was unable to tell as to how in the absence of evidence to the effect that the appellants were sharing common intention to commit the offence of robbery, were liable for the acts done by other accused persons.
11. As to the first limb of argument in the contention raised by the learned counsel for the appellants that since the appellants were not specifically charged under section 34, P.P.C., therefore, they could not have been vicariously held liable for the acts done by other accused persons, it may be noted here that section 34, P.P.C. Is convenient form of giving notice to accused that principle of joint liability is sought to be invoked. Section 34 is only the rule of evidence. It does not create a substantive offence and by virtue thereof only the rule of constructive liability is applied. Since object of a charge is to warn the accused of the case he is to answer, therefore, omission to mention section 34 of the Penal Code in the charge cannot effect the case unless prejudice is shown to have resulted in consequence thereof. Though as abandon precaution it is better to frame a specific charge in all those cases where section 34, P.P.C. Is applied. In this view, I am fortified by the following reported judgments:-- ' (1) B.N. Srikantiah, Siddiah and another v. State of "Mysore" AIR 1958 SC 672; (2) Willie (Williom)
Slaney v. State of Madhya Pradesh AIR 1956 SC 116; (3) Waryam Singh Arur Singh v. Emperor AIR 1941 Lahore 214 and (4) Jaikrishnadas Manohardas Desai and another v. 'State of Bombay AIR 1960 SC 889. ' and since, in the instant case, no prejudice is shown, to have been caused to the appellants nor it is conspicuous on record that they were misled in their defence by the absence of specific charge under section 54, P.P.C., therefore, the omission, to my mind, was not fatal. The argument, therefore, cannot prevail.
12. In the instant case, though it is the prosecution version that accused persons had attacked the complainant in order to snatch truck from him yet, from perusal of complainant's own statement it appears that the occurrence perhaps has not taken place in the manner as suggested by the prosecution. The complainant in his examination-inchief has stated that as he reached near the house of Haji Khudai Dost, then his way was blocked by a tractor which was being driven by Shamsuddin accused and at that juncture six persons were present. He has claimed that no sooner he stopped the truck then accused persons Shahabuddin, Shamsuddin and Shakarudin, alighted him from the truck whereas, accused persons namely, Haji Khudai Dost, Salahuddin and Pai-ud-Din, smashed wind screen thereof. He has further stated that accused persons Shahabuddin, Shamsuddin and Shakaruddin also gave him beating with kicks and fists whereafter the key of truck was snatched from him and appellant Salahuddin drove the same away.
13. Further, though the learned trial Judge, has convicted the appellants for committing the offence of robbery and the truck in question was also allegedly taken away by appellant Salahuddin yet from the evidence the instant, does not appear to be a patent case of robbery because, as stated above, it has come on record that while accused persons Shahabuddin, Shamsuddin and Shakaruddin, forcibly alighted the complainant from the truck. Haji Khudai Dost, Salahuddin and Pai-udDin smashed wind screen of the vehicle by giving Danda blows, hence if the intention of the appellants was to commit robbery then there was neither any need nor occasion to smash wind screen of the truck. Another fact which cannot be lost sight of is that per prosecution version though the truck in question, subsequent to the occurrence was recovered from the house of Haji Khudai Dost as it was found parked . Therein yet, the fact remains that as per complainant's own statement, occurrence itself took place in front of the house of Haji Khudai Dost, therefore, if the intention of the appellants was to commit robbery then there was no need to bring it back to the place of occurrence and park the same there again if it was once taken away. From sequence of the events, as they are alleged to have taken place, it appears that there was no element of pre- meditation and occurrence appears to be the result of blockage of way by the tractor allegedly driven by accused Shamsuddin. It would also be worthwhile to mention here that none of the prosecution witnesses, including the complainant, at the trial, have stated that accused persons were sharing common intention to commit the offence and acts done by all the accused persons were in furtherance of their common intention. Hence, I see force in the contention raised by the learned counsel for the appellants that in the absence of any evidence, to that effect, the appellants could not have been convicted under section 392, P.P.C. For, committing the offence of robbery because if the prosecution evidence in totality is believed even then the acts allegedly committed by the appellants would not render them vicariously liable for the acts done by other accused persons. Here it would be beneficial to have a glance at section 34, P.P.C. Which reads as follows:-- "S.34. Acts done by several persons in furtherance of common intention.--- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."
A plain reading of above provision would reveal that section 34, P.P.C. Would be applicable to those cases only in which it may be difficult to distinguish between the acts of individual members of a party who acted in furtherance of common intention of all or to prove exactly what part was played by each of them otherwise section 38, P.P.C. Would come into play which provides; that "where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that "act". Since in the instant case, none of the prosecution witnesses have uttered a single word that there was preconceived plan at the part of the accused persons to commit the offence of robbery or they acted in furtherance of common intention of all, therefore, in the absence of requisite proof, in any view, section 34, P.P.C. Could not have been applied to the instant case and the appellants were liable for the acts done by them individually within the purview of section 38; P.P.C. It would be pertinent to mention here that in all those cases, in which occurrence takes place all of a sudden on account of chance and encounter between the parties, as it appears in the instant case, the application of principle of vicarious criminal liability would be out of question. This view receives support from the following reported judgments:---
(i) Khadim Hussain and three others v. The State 1991 PCr.LJ 2323; (ii) Sabuz Hussain Shah and others v. The State PLD 1987 Pesh. 164; (iii) Muhammad Sharif and two others v. The State PLD 1981 Lahore 191; (iv) Iqbal and others v. The State 1990 ALD 741(2) and (v) Misbahuddin and others v. The State 1983 PSC 72.
14. Applying the above principle to the instant case I, see that allegation against appellant Salahuddin, precisely is that he at first smashed wind screen of the truck and subsequently drove the same away, there is no allegation against him that he had either beaten the complainant or forcibly snatched, from him, key of the truck. It may be noted here that section 390, P.P.C. Which provides definition of robbery lays down that theft would be robbery if, in order to commit theft or in committing the theft, or in carrying away or attempting to carrying 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 wrongly restraint, otherwise it would be simply theft culpable by section 379, P.P.C. Conviction recorded against appellant Salahuddin, therefore, under section 392, P.P.C. Is set aside and he instead is G convicted under section 379, P.P.C. And sentenced to undergo three years R.I. Because on the basis of evidence it was proved, at the trial, that he had taken away the truck from the place of occurrence without permission and consent of the complainant and the defence plea was found false. The amount of fine or the term of the sentence of imprisonment in default thereof, inflicted on him, shall remain the same as ordered by the learned trial Judge.
15. So far as the case of co-accused Haji Khudai Dost is concerned, only allegation against him is that while co-accused persons, namely, Shahbuddin, Shamsuddin and Shakaruddin brought down the complainant from his truck and gave beating to him the appellant along with his companions, smashed wind screen thereof. No overt act towards commission of the offence of beating or theft was, however, attributed to him. Further, though the truck in question was subsequently found parked in his house but since, as stated above, the occurrence also took place in front of his house, therefore, recovery thereof would hardly saddle him with the liability of theft or dishonestly taking possession of stolen property. Hence, I see force in the contention raised by the learned counsel for the appellants that he, at the most, was guilty of committing mischief, culpable by section 426, P.P.C. Conviction and sentences recorded against him under section 392, P.P.C. Are, therefore, set aside and he is instead convicted under section 426, P.P.C. He is an old man of 68 years and has gone through the rigours of trial. Though, at the trial, he remained on bail but subsequent to pronouncement of the impugned judgment, on 9-10-2003, he was taken into custody. His sentence was suspended on 20-11-2003 but since the maximum sentence provided for the offence under section 426, P.P.C. Is only three months, therefore, I feel that the sentence already undergone by appellant Haji Khudai Dost would be sufficient to meet the ends of justice. He is on bail. His bail bonds are discharged.
' With the above modification in the convictions and sentences of the appellants, this appeal is hereby dismissed.