1. SAJJAD AHMAD, J.-The appellant, Abdul Majid, a police constable, was tried along with his colleague named Abdul Rauf, for offences under sections 393/398 and 307/34, P. P. C., by the learned Additional Sessions Judge, Sukkur, who acquitted both of them of the charge under section 307/34 but found them guilty of the other charge (393/398), and sentenced each of them to 7 years' R.
1. On appeal to the former High Court of West Pakistan (Karachi Bench), a learned Single Judge confirmed the convictions and sentences of the accused by his order dated the 9th of October 1967. Abdul Majid, appellant, alone moved a petition for leave to appeal in this Court, which was granted on the 16th of February 1968, to re-examine the evidence in the case to consider whether the appellant's conviction has been properly recorded.
2. According to the prosecution case, the appellant and his companion went to a brothel house in Sukkur which was run by two singing girls, Mst. Shamim and Mst. Zohra, on the 17th of August 1964 at about 10-30 p.m. P. Ws. Badrinath and Ramzan were already present there listening to the songs of the aforesaid girls. Abdul Majid was armed with a knife whereas his companion was armed with a revolver. Both of them pointed out their weapons at the persons sitting in the brothel house and called upon them to get up and surrender everything they had. On this, the inmates got up and raised a cry, and the accused fled away. They were pursued by P. Ws. Badrinath, Ramzan and several others, including some police constables, who ultimately caught them. They were relieved of the knife and the revolver held by them.
3. Several witnesses were examined at the trial. Of these, P. Ws. Badrinath, Ramzan, Mst. Shamim and Suleman, who were inside the. Brothel house at the time, deposed to the actual incident of 4 the`$rime. P. W. Badrinath stated as follows:- "While we were still hearing songs, the two accused came up inside the room . . . . . . . . . As soon as Ahey came, accused Abdul Majid opened iris knife in our presence . . . . . . . . . . . .Accused Abdul Rauf levelled his revolver at us and Abdul Majid showed a knife and told us to get up and allow them to search our persons. Due to fear we got up. I told them that we had nothing, and I and Ramzan simultaneously raised cries of `thief, thief'. The two accused started running away. We followed them raising cries."
4. Mst. Shamim stated that "when the accused came, they said 'khabardar' and asked us to allow them our search. At that time I was singing in the room where as the rest were listening. Sadik and Suleman were also sitting there, playing on tabla and harmonium respectively. In the meantime Ramzan raised cries and noise and started running down when the accused also ran down-stairs."
5. P. W. Ramzan depicted the actions of the accused persons as follows:- "As soon as they came, they told us to stand up, and we got up due to fear of revolver. In the meantime, there was noise on the roof of the room and the two accused started running away."
6. In cross-examination, this witness clarified by stating further that "the accused did nothing except that they told us to get up". P. W. Suleman, who was playing the harmonium at the time, could not be examined at the trialas he was absent and his presence could not be secured without an amount of delay and expense. His evidence recorded by the Inquiry Magistrate was transferred to the Sessions record under section 33 of the Evidence Act. He stated that "the accused persons showed the revolver and the knife held by them respectively, and asked the inmates to get up and give search of their persons".
7. The learned counsel for the appellant has contended that the role attributed to the appellant in this incident, which is described discrepantly, does not amount to an offence under section 393/398. He submitted that according to the statement of Ramzan, P. W., the accused and his companion merely asked the persons who were sitting in the brothel house to stand up, and also showed up their weapons, namely, the knife and the revolver respectively held by them. He has argued, not without force, that the statement of the other witnesses, namely, Mst. Shamim, Badrinath and Sadik that the accused persons had also said that the inmates should surrender all that they had and allow them to be searched, was merely an embellishment.
8. However, the question, which has engaged our serious attention, is whether the utterances and the actions attributed to the accused persons by the witnesses, notwithstanding the dis--crepancies, do constitute an offence of attempted robbery. Accord--ing to the accepted concept of attempt as an indictable crime, means an intentional act with a view to attain a certain end but which is not achieved because of circumstances independent of the will of the offender who makes the attempt. Whether any given act or series of acts constitute a criminal attempt punishable under the penal law is a question of fact in each case, depending on the circumstances surrounding the act. More specifically, an attempt to commit a crime consists of the following elements:
(i) The intent to commit the crime.
(ii) Performance of some act towards the commission of the crime, and _
(iii) Failure to consummate its commission on account of the circumstances beyond the control of the offender.
9. The test whether there has been an attempt to commit a crime, is a factual one by reference to the three ingredients set out above, In the present case, if we accept the evidence of Ramzan, whatever else may have been the intention of the appellant and his companion in displaying their weapons and asking the inmates to stand up, it could not have been that of committing robbery.
10. They may have intended to clear the brothel house of the visitors for their own exclusive enjoyment.
11. If we were to accept the other version, as deposed to by the remaining witnesses, that the accused had also asked the inmates to surrender and allow them their search, they did nothing to put that intention into execution by taking any forward step to do the actual search -and to rob the victims of their possessions. The prosecution does not allege that the accused had actually performed any specific act to commit the robbery, beyond the call made by them, asking the prosecution witnesses to surrender themselves for search. If the accused had really wanted to rob them, they - would have certainly done some thing practical to achieve that end. They could not have suffered their object to be foiled just because an alarm was raised by the persons whom they had asked to surrender, as noise and alarm from their victims could well have been anticipated by them. The raising of the alarm was not a circumstance which can be considered as one beyond the control of the accused persons, and which defeated their design in the commission of the offence.
12. It is well settled that if two versions or interpretations of the incident are equally possible, the one favourable to the accused should be preferred and accepted. The facts and circumstances deducible in the present case do not yield the only conclusion that the accused persons had intended to commit the offence of robbery. The evidence at the worst makes out case of criminal intimidation on the part of the appellant, for which he could have been appropriately charged and convicted under section 506 of the Penal Code.
13. We would, accordingly, alter his conviction to section 50~ P. P. C. And sentence him to imprisonment already unctergone. As he was allowed bail by this Court, he need not surrender t his bail bonds. We order accordingly.