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Criminal Appeal No. 676 of 1959, decided on 17th March 1960.

S. 397‑Expression "uses any deadly weapon"‑Includes carrying of weapon for purpose of overawing person robbed.

The word "use" in section 397 of the Penal Code, 1860 must be given its ordinary meaning and not a restricted meaning. It was argued that in order to apply section 397 the offender should cause actual injury with any deadly weapon to the victim and only in that case it will amount to "using the deadly weapon", it was held that this inter pretation of the word was not correct. If a culprit armed with deadly weapon threatens the victim therewith and thus makes it easy for the other culprit to commit robbery or dacoity without let or hindrance, he would be taken to have used the deadly weapon within the meaning of this section.

Shaukat Ali for Appellant.

Ejaz Husain Batalvi, for A. G. for the State.

This order will dispose of Criminal Appeals Nos. 676 of 1959 by Alauddin alias Labba son of Muhammad Ismail, resident of Kachi Abadi Ahata Azim, and, 736 of 1959 by Tahir Husain Son of Mazahir, of Ahata Gora Shah, Misri Shah, Lahore, against their convictions under section 392 read with section 397 of the Pakistan Penal Code and sentence of seven years rigorous imprisonment each. Tahir Husain, in addition, challenges his conviction under section 307 of the Pakistan Penal Code and sentence of four years rigorous imprisonment, which is ordered to run concurrently with the aforementioned sentence.

2. The facts of the case are that on the 13th of September 1958 at 1‑30 p.m., Abdul Qayyum (P. W. 1), a postman, was going on the Sample Road in order to distribute the post, including the money orders to different persons. He had already delivered some money orders and in order to deliver the rest he had still ors his person a sum of Rs. 65, As he reached near Bungalo No. 198, he was stopped by two persons, one of whom was armed with a revolver and the other with a dagger. The person with the revolver made Abdul Qayyum get down from the cycle and putting the barrel of the revolver on his chest ordered him to hand him over all the money that he had in his possession. Abdul Qayyum had the cycle in one hand and with the other hand he tried to remove the barrel of i,e revolver from his chest. The man with the revolver, however, succeeded in taking Rs. 65 out of the pocket of Abdul Qayyum he at the same time fired a shot which hit Abdul Qayyum on his foot. At the time when the man with the revolver was taking the money out of the pocket of the victim his other companion was standing close‑by, threatening him with the dagger, After the revolver went off acid Abdul Qayyum was injured, both the culprits took to their heels. They were pursued up to some distance by Abdul Qayyum but he could not continue the pursuit because he was injured. The culprits were, however, chased by other persons going on tile road, including Saifullah (P. W. 4), Saida Khan (P. W. 5), Muhammad Sharif (P. W. 6), Suba (P. W. 7) and Rustam Khan (P. W. 8). One other person who took part in the pursuit was Gut Rahman but he could not be produced as a prosecution witness because by the time the evidence was recorded he had become untraceable. The aforementioned persons succeeded in apprehending both the culprits. The man with the revolver was actually caught by Gut Rahman, while the man with the dagger was caught by Saida Khan (P. W. 5) after he had successfully dodged Saifullah (P. W. 4). Abdul Qayyum and the two culprits were taken to Police Station Moghalpura, situated at a distance of one and a half furlongs from the scene of occurrence, where Abdul Qayyum himself made the report at 2‑10 p.m. The man with the revolver turned out to be Tahir Husain appellant, and the mail with the dagger Alauddin appellant.

3. So far as the prosecution case against both the accused is, concerned, I think it has been proved by the evidence which is both unimpeachable and unassailable. All the witnesses are absolutely disinterested and independent. There is no reason whatsoever for them to implicate the appellants falsely. So far as Alauddin appellant is concerned, die was actually first caught by Saifullah P. W. who had picked up a brick and wanted to hit hint but did not actually do so because he was threatened with a dagger by Alauddin. While this process was going on between Saifullah and Alauddin, Saida Khan P. W. came out of his house and caught hold of Alauddin along with the dagger. Gut Rahman caught the second accused when he was running away and while so running was actually firing shots at his pursuers. The conviction of both the accused, therefore, under section 392 read with section 397, P. P. C. is unchallengeable. So far as the conviction of Tahir Husain under section 307, P. P. C. is concerned, it is equally unassailable.

4. The learned counsel appearing for Alauddln, however, has argued that section 397, P. P. C. had no application so far as Alauddin was concerned. This section does not by itself create a substantive offence. It is only a supplementary section which lays down the minimum sentence if the people taking part in the robbery or the dacoity use any deadly weapons. In the case before me Alauddin was armed with a dagger and he actually used it at the time when the dacoity was, taking place, because Abdul Qayyum quite distinctly stated that when the money was being removed from his person by Tahir Husain, Alauddin was standing close‑by with the dagger pointing towards him. It is argued that in order to apply section 397, P. P. C. the offender should cause actual injury with any deadly weapon to the victim and only in that case it will amount to "using the deadly weapon." I am. afraid I cannot agree with the interpretation of section 397, Pakistan Penal Code. If a culprit armed with deadly weapons A threatens the victim therewith and thus makes it easy for the other culprit to commit robbery or dacoity without let or hindrance, would be taken to have used the deadly weapon within the meaning of this section. The word "use" must be given its ordinary meaning and not the restricted one, as is desired to be given by the learned counsel for the appellant.

5. Going through the evidence along with the learned counsel appearing for Alauddin very carefully I have come to the conclusion that there is no substance in both the appeals which must fail and are hereby dismissed.

K.B.A. Appeals dismissed.

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