JUDGMENT

Tek Chand, J. - This judgment will dispose of criminal appeals Nos. 737, 738, 856, 857, 945 and 1080 of 1927, which are directed against the judgment of the Magistrate 1st Class (with enhanced powers) Rawalpindi, convicting Karim Bakhsh, Mir Zaman, Gheba, Bagga and Fazal Karim, appellants, of an offence under Section 399, I.P.C., for having made preparations to commit a dacoity and sentencing each to undergo rigorous imprisonment for seven years, and also against the judgment of the same Magistrate convicting Karim Bakhsh in a separate trial under Section 20, Arms Act, and sentencing him to rigorous imprisonment for seven years, the sentence to run consecutively with that passed against him under Section 399, I.P.C.

2. The principal witness against the appellants in the case under Section 399 is Muhammad Jan (P.W. 1), a domestic servant of one Mirza Kale Khan, Inamkhor of mauza Kalanjar, residing in Rawalpindi city. The story told by him is that the appellants Mir Zaman, Karim Bakhsh and Bagga lived in the same mohalla as his employer and that he had known them for a considerable time. On the 7th May 1927, he went to the house of Mir Zaman and found Karim Bakhsh and Bagga there. In the course of conversation Bagga informed the party that one Bawa Ganga Ram, who lived in the Hindu cremation ground happened to possess currency notes worth Rs. 900 besides cash and other moveable property and that a dacoity might be committed in his house. After consultation it was decided to commit the dacoity at the Bawa's house on the following night and during the course of conversation it transpired that Fazal Karim and Gheba appellants and Aulia Muhammad Zaman (absconders) had also agreed to join the commission of the dacoity. It was agreed that the party would meet at the underground near the fort at about 8 p.m. and that Karim Bakhsh and Fazal Karim would bring pistols. The witness Muhammad Jan was also asked to bring, if possible a pistol with him.

3. After the plan had been settled Muhammad Jan returned to the house of his employer and at about 8 p.m. on receiving information from Mir Zaman, he left for the meeting place but without a pistol as his master had kept it under lock and key. Bagga, Karim Bakhsh, Mir Zaman and Muhammad Jan arrived at the meeting ground and went into the depression. About half an hour later Gheba, Fazal Karim, Aulia and Muhammad Zaman also arrived there. Fazal Karim was armed with a spear (Ex. P. 1) and a revolver. Mir Zaman and Gheba had lathis (Exs. P. 4 and P. 5), while Karim Bakhsh had also with him an iron rod (sambal, Ex. P. 6). After consultation it was decided to commit the dacoity after the moon had gone down. As Fazal Karim and Gheba had not taken their food it was found necessary to send for it from the town. The witness Muhammad Jan was accordingly sent to bring it. He, however, went straight to his employer Kale Khan and told him that a dacoity was going to be committed in which murders might also take place. Kale Khan took the witness to the thana and there he related the whole story to Mir Afzal Khan, Sub-Inspector (P.W. 3), and Chaudhri Buta Ram, Deputy Superintendent of Police (P.W. 2), who recorded his statement Ex. P.A. It was arranged with the police that Muhammad Jan should go back to the spot with the food and some cigarettes and that the police would follow and would surround the locality where the conspirators had assembled, and that when Muhammad Jan would light a cigarette or cough, the police would fall upon the party.

4. Accordingly Muhammad Jan returned to the meeting place near the fort with food and cigarettes and the police arrived there at about 11 p.m. A short time after he lighted a cigarette and the police at once challenged, whereupon the conspirators readily took to their heals. The police opened fire wounding Fazal Karim appellant. Karim Bakhsh, who had a pistol, replied by firing two shots. Fazal Karim, Mir Zaman and Gheba were arrested on the spot while Karim Bakhsh