396. Dacoity with murder.--If any one 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.
COMMENTARY
1. Scope. Relationship in itself is not a yardstick or standard for discrediting evidence which otherwise is trustworthy and comes from one who normally could have been expected to have witnessed the occurrence. Such cannot be brushed aside unless proved that accused involved for some ulterior motive. 2003 YLR 110. Provision of this Section is applicable where five or more persons are involved in the case, only four persons being involved in the case, conviction under this Section is not warranted by law. PLD 2003 Kar 195. Weapons not used but only pointed. Simple robbery. 1990 PCr.LJ 1221.
2. Compromise. Compounding an offence by Court which is non-compoundable is statutory law in the light of concept of forgiveness in Islam, on the basis of compromise. Feasibility. Accused had been sentenced to death under S. 396, P.P.C. and to ten years R.I. under S. 412, P.P.C. by the trial Court and he had lost his case on merits upto Supreme Court in regular proceedings. Accused moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of deceased wherein he also made an alternate prayer of reduction in sentence. Question was as to whether the Court on the basis of the compromise of the accused with the legal heirs of the deceased could compound the offence under S. 396, P.P.C. which was non-compoundable in statutory law in the light of concept of forgiveness in Islam. Two kinds of punishment existed in Islam i.e. "Hadd" and "Tazir". Punishment of Hadd was in the Will of God, whereas any other punishment was called Tazir. 2006 PSC (Crl.) 152.
3. Appreciation of evidence. All prosecution witnesses related inter se giving three different versions, seat of injury as given by Medical Officer not corresponding with seat of injuries given by witnesses. Conviction set aside. 2005 PCr.LJ 60.
Direct evidence. Co-accused was convicted alongwith appellant but he did not prefer appeal against his conviction and sentence. Blind murder. Element of doubt. No identification parade. Identity of persons involved in such incident apart from the element of the uncertainty of the time of death of the taxi driver. No person was nominated in the crime report, nor any identification parade ever held so it was not a case of direct evidence. PLJ 2008 FSC 87.
Statement of independent eye-witnesses fully corroborated by recoveries and identification parade. Sentence of death held rightly confirmed by High Court. Appeals dismissed. 1985 PSC 654.
Number of accused persons involved in offence under S. 396, P.P.C. must be five or more and accused in case being only two in number, they could not have been convicted and sentenced under S. 396, P.P.C. Convictions and sentences of accused were set aside in circumstances with consent of parties with direction to Advocate-General concerned to ensure that challan of case was forwarded to Magistrate empowered to take cognizance of offence who after doing needful would send same to Court of Session for trial afresh in accordance with law. PLJ 2001 FSC 37 = 2001 PCr.LJ 481.
If the sentence of death of one accused was maintained, then remaining convicts would also be liable to the same punishment. PLJ 2006 FSC 907.
Murder taken place during the course of committing dacoity punishable with death u/S. 396 PPC is not compoundable. PLJ 2006 SC 59.
Admittedly, first informant, was not the eye witness but the telephone operator had informed him about the incident, who was not produced. Validity. Injured employees of the mill was the best evidence but they were not produced, without any justifiable reason. Accused persons were merely picked up and the role attributed to them was not stated by PWs, so identification could not be relied upon. PLJ 2008 SC 747.
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