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Criminal Appeal No. 545 of 1957, decided on 29th April 1958, from the order of G. M. Mansoor, Additional District Magistrate, Lyallpur, dated the 30th May 1957.
Penal Code (XLV of 1860), S. 397‑" Uses any deadly weapon" ‑Threatening to shoot with a pistol covered by expression.
Where the accused was armed with a pistol at the time of commission of the robbery, and had threatened to shoot at and kill the complainant at the time when he had demanded of the latter to surrender his property:
Held, that the accused had used the pistol at the time of the commission of the robbery within the mischief of the expression uses any deadly weapon' mentioned in section 397, P. P. C.
It will depend upon the circumstances of a particular case whether the carrying of a deadly weapon will amount to using a deadly weapon' within the mischief ‑of section 397, P. P. C. If an offender displaying a deadly weapon threatens to use it for the purpose of overawing the person robbed, he uses the deadly weapon within the meaning of section 397, P. P. C.
But in view of the 'language of S. 397 mere carrying of the weapon at the time of robbery does not fall under that section.
Nga L v. Emperor 13 Cr. L J 267 ref. and partly dissented from.
Nazar Shah v. Emperor A I R 1926 Sind 150 ; Nagar Singh v. Emperor A I R 1933 Lah. 35 and Chandra Nath v. Emperor 7 Luck. 543 ref.
Maxwell's Interpretation of Statutes (10th Edition) 280 ref.
M. Siddique for Appellant.
Virasat Hussain Naqvi for Respondent.
Date of hearing : 25th April 1958.
Dilawar Khan, aged 18 years, and Ranjha, aged 20 years, have been convicted by Mr. G. M. Mansoor, Section 30 Magistrate of Lyallpur, of an offence under section 392 read with section 397, P. P. C. and have been sentenced to seven years' rigorous imprison ment each. Dilawar Khan alone has filed this appeal against his conviction and sentence.
2. The prosecution case is that on the 21st of November 1956 Siraj (P. W. 1), accompanied by his cousin Muhammad Husain (P. W. 2), went to Lyallpur to purchase some articles irk connection with the marriage of his sister Mst, Taj Bibi; They purchased two muslin turbans, one sehra, five utensils and some rice. They put all these articles in a trunk and left for the village in a tonga at about evening time. They got down from the tonga at village Jhapal at about khuftanwela. This village is at a distance of 3 or 4 miles from the village of Siraj P. W. After getting down from the tonga they left on foot for their viliage. Siraj was carrying the trunk an his head and when they were at a distance of about a square from the village, they found Ranjha and Dilawar accused sitting there. Dilawar was armed with a pistol and Ranjha was armed with a takwa. The accused threatened them and asked them to hand over the trunk to them otherwise they would shoot at them and kill them. They then forcibly snatched the trunk with its contents and ran away. They also threatened them that if they disclosed this to anyone, they would murder them. The trunk contained the various articles mentioned above which were worth Rs. 16/8/‑. Siraj and Muhammad Husain then went to their village and informed the lambardkrr as to what had happened, The lambardar searched for the accused but‑ they were not available. Siraj P. W. then went to the Police Station Thikriwala, at a distance of four miles, and lodged the report Ex. P. A. on the 22nd of November 1956, at 9‑35 a.m. After the report had been recorded S. I. Ch. Muhammad Ali (P. W. 8), went to the spot and arrested both the accused from the field of Dilawar accused. (Key Ex. P. 1) was recovered from the personal search of Dilawar accused. This accused then led the police party to his house and pointed out a locked trunk lying inside his residential kotha. The lock, Ex. P. 8, was opened with the key Ex. P. 1 and turban (Ex. P. 2). glass (Exh. P. 3), kauli (Ex. P. 4), sehra (Ex. P. 5), revolver (Ex. P. 6) and an empty cartridge (Ex. P. 7) were recovered from the trunk. The name of Mst. Taj Bibi was engraved on the glass Ex. P. 3 and the kauli Ex. P. 4. Thereafter Ranjha accused led the police party to his house and produced articles (Exs. P. 9 to P. 12) from a niche in his kotha. The name of Mst. Taj Bibi was engraved on utensils (Exs. P. 10 to P. 12). After investigation, the accused were sent up for trial.
3. At the trial, eight witnesses were examined in sup port of the prosecution case. Dilawar accused denied the commission of the offence and also denied the recovery of the key Ex. P. 1 and other articles from his house. He pleaded that his uncle Muhammad Ali had given an appli cation against Muhammad Bashir Lambardar (P. W. 6) for the post of lambardari and he was implicated in this case on account of that application. He produced Muhammad Ali in his defence. Muhammad Bashir (P. W. 6) was also recalled in defence and was cross‑examined. The learned Magistrate rejected the defence version and accepting the prosecution case as true convicted and sentenced the accused as mentioned above.
4. The learned counsel for the appellant has taken me through the evidence on the record and has argued that the case is the outcome of the enmity with Muhammad Bashir Lambardar. Muhammad Bashir (P. W. 6) has denied that Muhammad Ali, uncle of Dilawar accused had been a candidate against him for the post of lambardari. It is true that Muhammad Ali himself has claimed that he was a candidate for the host of lambardari against Muhammad Bashir, but no document has been produced in support of this contention. But even if he was a candidate against Muhammad Bashir Lambardar, there is no reason as to why Dilawar accused should have been implicated in this case. At any rate, Siraj and Muhammad Husain P. Ws. have no enmity against Dilawar accused and could not have falsely implicated him at the instance of Muhammad Bashir P. W. Dilawar accused was known to Sira j as they belong to the same village and he could have had no difficulty in identifying Dilawar accused. It is true that Muhammad Hussain P. W. did not name Dilawar accused at all. In fact he stated that he had gone to ease himself when the trunk had been forcibly taken away from Siraj and that he had learnt from Siraj that Ranjha and another person had robbed him of the trunk. Muhammad Husain further stated that Siraj P. W. had given the name of the other culprit but he had forgotten that name. The name of Dilawar was mentioned by Siraj in the first information report. After carefully going through the evidence of Siraj P. W. I am unable to discover any valid reason to reject his testimony. The articles were recovered from the possession of Dilawar Accused in the presence of Siraj (P. W. 1), Muhammad Hussain (P. W. 2), Muhammad Bashir (P. W. 6), Muhammad Suleman (P. W. 7) and Ch. Muhammad Ali (P. W. 8). Even if the evidence of Muhammad Bashir Lambardar is excluded, there is overwhelming evidence that the key, Ex. P. 1, was recovered from the personal search of the accused and that he had led the police party to his house and had pointed out the locked trunk which was opened with the key and the articles, Exs. P. 2 to P. 5, and the revolver, Ex. P. 6, were recovered from it. Muhammad Aslam (P. W. 4) and Muhammad Ali (P. W. 5) have identified these articles as having been sold by them to Siraj P. W. Muhammad Ali has further added that he had engraved the name of Mst. Tai Bibi on the utensils, Exs. P. 3, P. 4, P. 10 to P. 12. The state ment of Siraj P. W. is, therefore, fully corroborated by the recovery of the stolen articles and the revolver from the posses sion of Dilawar accused. There is, therefore, no doubt that Dilawar accused was one of the robbers.
5. The learned counsel for the appellant has vehemently argued that section 397, P. P. C. is not applicable to the facts of the case. This section provides that "if, at the time of commit ting robbery or dacoity; the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." In view of the language used in section 397, P. P. C. the learned counsel for the appellant has contended that the appellant, even though he was armed with a pistol, had not used the same at the time of committing the robbery, and as such his case did not fall within the purview of this section.
6. The question, therefore, which requires determination is : what is the meaning of the expression uses a deadly weapon' Does it mean that the weapon should be used in the sense, that
if it is a weapon for cutting, stabbing or shooting, then it must be used for cutting or stabbing some person or for shooting at some person, and unless it is so used, it will not have been used within the meaning of section 397, P. P. C. This point came up for decision as long ago as the year 1911, in the former Chief Court of Lower Burma, in the case reported as Nga I. v. Emperor (13 Cr. L J 267), where Mr.. Justice Twomey, exhaustively dealt with this aspect of the case and observed as follows :‑
"It may be argued that to use' a stabbing weapon is to stab some person with it, to use' a cutting weapon is to cut some person with it, and to use' a gun is to shoot at some person with it. According to this narrow interpretation, brandishing a dagger or levelling a gun at a man might be regarded as merely threatening to use or preparing to use it, not as actually using it. But it is not clear that the word uses' in S. 397 should be interpreted with such strictness. The very next S. 398 imposes a minimum punishment of seven years' punishment on persons convicted of merely carrying a deadly weapon when attempting to rob. It seems probable that the Legislature intended to impose the same minimum where the robbery is actually completed. I am inclined to think, therefore, that .the word uses' in S. 397 should be construed in a wide sense so as to include not merely cutting, stabbing, shooting (as the case may be) but also carrying the weapon for the purpose of overawing the person robbed. It is no doubt at first sight remarkable that wider language is employed in S. 397 ( uses any deadly weapon') than in S. 398 ( is armed with any deadly weapon'). The explanation is apparently that .in attempted robberies it is often difficult to prove any use' of the deadly weapon except the mere fact that the accused carried it, whereas in a case of completed robbery it generally happens that the accused not only carries the deadly weapon but also overawes the person robbed or even stabs, cuts or shoots at him. The wider view of S. 397 is supported by a passage in Maxwell's Interpretation of Statutes:‑'If a man walks with a gun with intent to kill game, he uses' the gun for that purpose without firing, within the statute which makes using a gun with that intent penal.' English and American authorities are given for this interpretation * * * *. If the accused had merely attempted to take the complainant's property by overawing him with a dagger but (owing to infirmity of purpose on his own part or resistance on the part of the complainant) had not carried out his design, he would undoubtedly be liable to the minimum punishment provided in S. 398. The Legislature cannot have intended that if the criminal goes a step further and actually accomplishes his purpose he should thereby establish a claim to more lenient treatment. It cannot have been intended that a criminal should be urged to complete his criminal purpose by the reflection that if he stops short at an attempt he must get seven years, while if he completes the offence he may get off with imprison ment for two or three years."
7. As is clear from this judgment the learned Judge held that the expression uses a deadly weapon' also includes the carrying of a weapon for the purpose of overawing the person robbed.
8. This point again came up for decision before the Sind Judicial Commissioner's Court in Nazar Shah v. Emperor (A I R 1926 Sind 150), where Mr. Kincaid, J. C. and Mr. Kennedy, A. J. C., approvingly referred to the aforesaid Burma ruling. In that case the question that arose was whether the use of the handle of the axe while committing robbery amounted to using the deadly weapon. The culprit had in fact given a blow to the victim with the handle of the axe. It is, therefore, clear that the weapon had been used, though not from its sharp side. The question which really arose in that case was whether the use of the handle of the axe amounted to using the deadly weapon, and not, that if it was not used at all and was being merely carried, then also it amounted to using the same within the meaning of the section.
9. A similar point also arose before the Lahore High Court in Nagar Singh v. Emperor (A I R 1933 Lah. 35), where Agha Haider, J. felt some doubt about the application of this section to a case of this nature. In that case Nagar accused was not said to have made any particular use of his chhavi upon anyone of the inmates, at the time of the commission of the dacoity, yet the learned Judge after referring to the Sind ruling mentioned above, felt obliged to accept the interpretation placed by the Judicial Commissioners and upheld the conviction. If I may say so with the respect, the learned Judge overlooked the fact that the Judicial Commissioners in the Sind ruling had not given any interpretation of their own as regards the expression uses a deadly weapon' although they had approvingly referred to the observations of Twomey, J., in the Burma ruling.
10. The nearest parallel: to the case in hand is the case of Chandra Nath v. Emperor reported in (7 Luck. at p. 543), where the question arose before Bisheshwar Nath, J., whether a culprit uses a deadly weapon, when he demands the surrender of articles from his victim at the point of a revolver. The learned Judge held as follows : "The words used in section are uses any deadly weapon'. It would be putting a much too narrow interpretation upon these words to. say that a person does not ‑use a revolver unless he fires it. I am inclined to say that the words are wide enough to include a case like the present in which a person levels his revolver against another person in order to overawe him." With all respect I am in entire agreement with the principle laid down in the above judgment.
11. Except for the above‑noted authorities I have not been able to lay my hands on any other authority, which might have dealt with the question involved in the present case. The learned counsel for the appellant, however, cited some authorities, which were absolutely beside the point inasmuch as they dealt with the question whether the section applies only to such offender who himself uses a deadly weapon or is constructively applicable to his co‑accused also. This point of constructive liability has no nearing in the present case. It is a matter of regret that the learned counsel who appeared for the State did not cite any authority on the subject, although the authorities which I have referred to above were certainly available to him. It is my sad experience that in a large number of cases, counsel appearing on behalf of the State, are not prepared, and in most of the cases where a law point arises, instead of assisting the Court by citing relevant authorities they very often look blank, and sometimes even seek the assistance of the Court to come to their rescue. This state of affairs is highly deplorable. And though I realise that the counsel appearing on behalf of the State get very little time to prepare their briefs, yet it is for the State to make the necessary arrangements in the matter. I can only hope that the learned Advocate‑General should see, that in future the counsel appearing on behalf of the State are well prepared.
12. Turning again to the point involved in the instant case, I find from the statement of Siraj P. W., which I have no reason to disbelieve, that the appellant Dilawar was armed with a pistol at the time of the commission of the robbery, and although he has not stated in so many words, that he had levelled the pistol at him, but there is no doubt in my mind that Dilawar appellant had threatened to shoot at him and kill him at the time when he had demanded of him to surrender his trunk. It is, therefore, clear that he had displayed the pistol in such a manner, as to frighten his victim, and this was accompanied by a threat to shoot at him and kill him. It is laid down in Maxwell's Interpretation of Statutes (10th Edition) at page 280 that "if he (a man) walks with a gun with intent to kill game he uses' the gun for that purpose without firing within the statute which makes using a gun with that intent, penal."
13. Having regard to all the circumstances of the case and after due consideration of the authorities referred to above, I am inclined to hold that in the circumstances of the present case the4 appellant had used the pistol at the time of the commission of the robber within the mischief of the expression uses any deadly weapon' mentioned in section 397, P. P. C.
14. Here I wish to point out that the Legislature has prescribed a minimum sentence of seven years' imprisonment as provided by section 398, P. P. C., in cases where an offender while armed with a deadly weapon attempts to commit robbery, but surprisingly enough, no minimum punishment is prescribed when such an offender actually completes the offence of robbery. In the latter case, in view of the provisions of section 397, P. P. C., such an offender is liable under this section only if he uses such a deadly weapon. The position is somewhat anomalous, and should be immediately remedied by the Legislature. It appears that in view of this anomalous position, Twomey, J. of the Chief Court of Burma, had to interpret the expression uses any deadly weapon' in a somewhat wider sense so as to include not merely cutting, stabbing, shooting (as the case may be) but also carrying the weapon for the purpose of overawing the person robbed. As at present advised, in view of the language used in the section, it is with some reluctance, that I do not find myself in complete agreement with the interpretation placed on the expression uses a deadly weapon' by Twomey, J., but I have no hesitation in holding that it will depend upon the circumstances of a particular case whether the carrying of a deadly weapon will amount to using a deadly weapon' within the mischief of section 397, P.P.C. In my opinion if an offender displaying a deadly weapon threatens to use it for the purpose of overawing the person robbed, he uses the deadly weapon within the meaning of section 397, P. P. C. In this view of the matter, I do not find any force in this appeal.
15. It is true that in the present case, the appellant is aged 18 years and appears to be a first offender, and the value of the property is only Rs. 16/8/‑, but in view of the legal prohibi tation provided by section 397, P. P. C., I am unable to reduce his sentence. I accordingly dismiss this appeal.
A. H. Appeal dismissed.
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