The present appellant Ayyub Masih stood his trial along with Bashir a Teli by caste Mukhtar Masih and Hanif Masih before Mr. Saadat Nawaz Khan. Additional District Magistrate, Muzaffargarh under section 397/34, P. P. C. Hanif Masih absconded from jail during the trial while the other three were convicted for the above offence and were directed to undergo seven 11 years' rigorous imprisonment each with twenty stripes each. The appellant and his co-accused had earlier been tried but their case was remanded back for retrial for defects in the trial.
2. The occurrence took place on the night between 6th and 7th of June 1964, in Chack No. 626/TDA, Police Station Dera Din Pannah in the -District of Muzaffargarh. On the night of occurrence Ilahi Bakhsh-(P. W. 2) was sleeping on his dera along with Faizullah (P: W. 1) and one Imam Bakhsh who has not been produced at the trial. At about midnight `Faizullah was awakened by the barking of the dogs and found that the door of the house of Ilahi Bakhsh was open. Meanwhile Ilahi Bakhsh: also got up. Mahi P. W. Has his house at some distance from his dera where he was sleeping along with Sarwar P. W. And Ali Muhammad. Mahi lit up a torch and found the four accused running away.
They were followed and Hanif absconder fired at them but missed the target. The. Miscreants were overpowered and a bundle containing some silver ornaments and clones was recovered from Bashir accused. All the accused received injuries during the attempt of the prosecution witnesses to overpower and capture them. Next morning they were produced before A. S. I. Muzaffar Hussain (P: W. 4) at Police Station Dera Din Pannah. At the the of the commission of the offence Mukhtar accused was armed with a revolver and Hanif absconder was armed with a pistol. The other to were unarmed. At the the of the production of the accused before the police the to weapons were also produced along with an empty by Ilahi Bakhsh (P. W. 2).
3. The medical certificate shows that all the four accused in this case had injuries. They come from Lyallpur District whereas the place of occurrence is situated in District Muzaffar--garh. They had no apparent reason to be there during the night.
4. The defence -taken by Bashir was that he was in the employment of Ilahi Bakhsh (P. W. 2) who was refusing to pay his remuneration. Ilahi Bakhsh asked him to bring some other persons of his Raqa to reap the gram crop and then trumped up a false case against them. This defence for good reason did not carry Conviction with the learned trial Magistrate, It is very rare that a gram crop is reaped in the month of June. The reason for false involvement is far from convincing.
5. Out of the four accused to were armed with fire-arms. The appellant Bashir his co-accused were empty handed. The appellant in my view could not be convicted under section 397,' P. P. C. Because he was not equipped with any weapon. There is a chain of authorities in which it has been held that it is only the offender who actually uses the deadly weapon that can be convicted under section 397, P. P. C. And the constructive liability of his companions in the crime does not arise under the section. See Ilahi v. Emperor (AIR 1924 Lah. 409) and Khuda Dad v. Emperor (AIR 1927 Lah. 791) of course section 397 would be applicable in case of a person who may be carrying a deadly weapon during the commission of the offence but may not have used it. It was held in Sheroo and others v.
Crown (PLD 1950 Lah. 269.) that the meaning of the word use must receive a comprehensive interpretation and would include the carrying of any deadly weapon in the course of a dacoity with a view to overawe persons intending .To resist the commission of the dacoity. But it is extremely doubtful that section 307, P. P. C. Would apply to a person who is privy to the commission of the offence of dacoity but is empty handed because the word use will come into operation only when he is carrying a weapon.
6. The appellant in this case was admittedly empty handed and in view of what has been stated above his conviction under section 397, P. P. C is not sustainable. I therefore alter his conviction to section 395, P. P. C. And award him a sentence of five years' rigorous imprisonment.
7. It appears that Bashir the co-accused of the appellant who was also empty handed has not filed any appeal in this case. The evidence shows that the appellant and Bashir were empty handed at the the of the commission of the offence. The case of Bashir would also fall within the orbit of section 395, P. P. C. In exercise of this Court's powers under section 439, Cr. P. C. I also convert the conviction of Bashir to one under section 395, P. P. C. And award him a sentence of five years rigorous imprison--ment. This sentence shall of course run concurrently with the sentence awarded to Bashir and upheld by me in. Criminal Appeal No. 542 of 1967.
The sentence of whipping is set aside.