1. The above-named five appellants have been convicted under sections 396, 148, P.P.C. By Syed Khursheed Hyder Rizvi, the then Sessions Judge, Shikarpur by judgment dated 15-11-1984 and each of them has been sentenced to suffer life imprisonment and R.I. Of three months thereunder respectively. Each of them is also directed to pay compensation of Rs.2,000 to the heirs of the deceased.
2. The prosecution story in brief is that on 15th November, 1972 at about 12-00 noon complainant Dost Ali, Ghous Bux, Jourak and Bhambho were grazing their cattle in the jungle when the above-named five convicts and co-accused Bhutto appeared on the scene and wanted to drive away .10 sheep belonging to one of the shepherd Jourak. Geedo and Audho were armed with guns. Pandhi, Hakim and Barocho were armed with hatchets. Deceased Bhambho who was also armed with a hatchet tried to scare them away by inflicting hatchet blows with back side of the weapon on convict Pandhi. Pandhi appealed for help and Geedo fired his gun causing fatal injuries to Bhambho deceased who dropped dead on the spot on account of this shot. The dacoits after causing injuries to the complainant party made good their escape taking away 10 sheep with them. F.I.R. Was lodged at Ghari Tegho Police Post and after investigation the accused were challaned and all the six were put on trial. Accused Bhutto died during the pendency of the trial anti the remaining five appellants were tried and convicted as stated above. They have appealed against their conviction and the appeal came up for hearing today.
3. This application for bail has been moved by the five convicts under section 426(1), Cr.P.C. Praying for suspension of the sentence during pendency of the appeal. Mr. Shaikh Ayaz leaned counsel who has appeared and argued this bail application does not press the request for bail for convict Geedo. He has half-heartedly pressed the case of Pandhi who according to the judgment had given a "Lalkara". The learned counsel, however, has vehemently argued the case of the remaining three, namely, Audho, Hakim and Barocho. During the arguments the learned counsel ties tried to point out the contradictions and discrepancies in the prosecution case but the crux of his argument is that no overt act is attributed to Audho Hakim and Barocho and as such at least these three should be released on bail during the Pendency of appeal. In support of his arguments learned counsel has referred to some case-law in order to show that if no overt act is attributed to a particular accused or convict he should be granted bail. The first case relied upon by the learned counsel is reported in Muhammad Siddiq and 2 others v. The State NLR 1983 Cr. L J 526(2). In this case, the sentence of life imprisonment was suspended. But the sentence was suspended on "uncontroverted plea that one convict petitioner was empty-handed whereas second convict-- petitioner though armed with a Sota had not hit deceased". This five or six lines judgment does not indicate what was the crime in which they were involved. Whether it was a sudden fight or a premeditated crime in which the major role was played by some other accused. This case cannot be called an authority for the proposition that if in a dacoity case six accused with a pre- determined intention committed the offence and also caused death then some of them who may not have been able to use their weapons should be let of merely because the object was achieved without use of their weapons. The use of their arms would in the situation be an act of over doing.
4. The next case relied upon by the learned counsel is reported in 1968 P Cr: L J 1674 in which Fazle Akbar, J. Of the Supreme Court (as he then was) refused leave to appeal against the order of the High Court which had granted bail and suspended the sentence of the convicts of murder under section 302, P.P.C. This case is not at all germane to the controversy involved till the orders of the High Court by which the bail was granted are before us and reasoning for grant of bail are not scrutinised. The third case relied upon by the learned counsel is 1983 P Cr. L J 2245. In this case the conviction was Under section 302/34, P.P.C. And some of the accused were, granted bail and sentence of conviction was suspended during the appeal, on the ground that no overt act was attributed to the accused who were granted bail by the High Court. In para. 3 of the judgment the observation is as follows:-- "3. Since Muhammad Latif, petitioner, is not attributed any overt act with respect to the death of the two deceased persons, apart from Lalkara, the petitioner has made out a case for suspension of his sentence."
5. On these grounds the sentence was suspended. This case surely goes in favour of the applicants /convicts so far as the case of Audho, Hakim and Barocho is concerned. As a matter of fact on the authority of this case the case of Pandhi would also be covered who had shouted for help to extricate himself from the situation he was placed in. It cannot be termed as "Lalkara", an expression used by an overzealous accused inciting others to open the attack.
6. Besides this there is a chain of authorities in support of the view that where the accused/convict has not been attributed a definite role and has merely played a non-participatory or passive role for purposes of bail he should be treated differently. The reason being that the question whether he should be awarded the same punishment and treated alike with others whose hands were found soiled with blood of the crime would remain debatable till such time that his case is examined in depth and the part played by him is finally determined. During pendency of the case or the appeal as the case may be, it would also remain an open question whether all the participants though physically present shared a common intention to do away with the victim or the non-active participants themselves became a victim of circumstances due-to sudden turn of events resulting in fatal injuries at the hands of the co-accused. The degree of culpability in such al situation would vary from accused to accused. In the end the retribution awarded to each should be proportionate to the degree of his culpability in the crime. But the case of dacoity accompanied with murder should be viewed separately. Here no member of the band had a premeditated design to kill any particular person. The paramount intention of each member of the gang was to acquire property.
7. The lust of booty and not the lust of blood was the motivating force behind the mind of each member which brought them to the scene of the crime. Individually and collectively they were keen to avoid any clash and would resort to force most reluctantly much against their will. This inhibition to cause any injury simple or grave would be shared by each of them whether. His fingers are on the trigger of his gun or on the lock of the safe. The bodily injuries caused during such an encounter usually occur much to their distress and out of sheer necessity for accomplishing the object. The intruder causing death has no previous enmity with his target. More often then not such a misfortune occur in effort to break the corden and ensure their escape. Can any discrimination be made between any one of them and can it be said that quantum of retribution to each would depend on the part played by each? In my humble opinion the legislative intent specified in section 396, P.P.C. Provides the answer. Section runs as follows:---- "396. Dacoity with murder.-- If anyone of five or more persons, who are conjointly committing dacoity commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than ten years, and shall also be liable to fine."
8. There is no doubt that in the case on hand all the five convicts who were armed to the teeth reached the scene of offence with intention to commit dacoity. They all shared the common intention to commit dacoity. None of them even Geedo who has fired the fatal shot had any design or premeditated intention to cause death of Bhambho. But once it is shown that murder was committed by Geedo while all the five were "conjointly committing dacoity" then all of them would be equally liable for the murder. Had it been a case of murder punishable under section 302, P.P.C.
9. Then each one of them could not be made liable until his individual role was not determined in terms of section 34. But section 396 has a combined effect of 302 and 34, P.P.C. The concept of immunity for those to whom no overt act is attributed is misconceived in the present situation. This is a case where the intention from the start to the end for committing dacoity is common. Their very presence during the commission of the offence would be deemed to be an overt act and enough to saddle them with the consequences prescribed in the section. The contention of the learned counsel has no merit. Application is dismissed.