1. ' Appellant Paryal stands convicted by the learned IlIrd Additional Sessions Judge, Dadu in Sessions Case No,761 of 1989 (with subsequent Nos.306 of 1991 and 221 of 1990) in Police Crime No,13 of 1989 of Police, -Station, Pat Gul Muhammad, for allegedly committing an offence punishable under section 399, P.P.C. Vide judgment dated 27-7-1998 (impugned herein) and thereby stands sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs,1,000 or in default thereof to further suffer imprisonment for six months with benefit under section 382-B, Cr .P.0 . Co- accused Allah Ditto was also convicted for the very same offence and sentenced to the same effect by the very same judgment.
2. ' Heard Mr. Shafi Muhammad Memon for the appellant and Mr. Muhammad Azeem Panhwar for the State; so also perused R & P of the case.
3. ' It is alleged against the appellant that on 13-11-1989 S.H.O., Abdul Rehman Lashari of Police Station, Pat Gul Muhammad received spy information against the appellant and other five persons for having collected in the jungle near the shrine of Wannar Shah, duly armed with fire-arms/weapons "with intention to commit dacoity", and he alongwith his subordinate staff after making such entry in the station diary of the police station, reached the said place, and surrounded the said jungle bushes; co-accused Allah Ditto, Anwar Rind, present appellant, co-accused Dino Mastoi, Nabbu Mastoi and Sawan Mastoi were seen on the torch-light; co-accused Allah Ditto, Anwar Rind with present appellant were arrested on the spot, after they were surrounded, while the remaining managed to escape away; Dino and Nabbu were found duly armed with guns respectively, while Sawan with hatchet; one unlicensed rifle with 15 rounds were secured from the possession of the co-accused Allah Ditto Mugheri, while unlicensed country made pistol and 5 cartridges were secured from the co, accused Anwar. A hatchet was secured from the present appellant and such Mashirnama was prepared, they were taken to the police station where F.I.R.
4. Pertaining to this case was registered while separate cases were registered pertaining to the recovery of unlicensed fire-arms.
5. ' During the trial appellant pleaded not guilty. Prosecution examined S.H.O., Abdul Rehman Lashari, S.I.P. Nooruddin in support of its case; in his statement under section 342, Cr.P.C. Appellant denied the allegations of the prosecution and stated that he was falsely implicated; he neither examined himself on oath in denial of the prosecution case nor produced any defence evidence.
6. ' The trial Court found the appellant, with co-accused Allah Ditto, guilty of the alleged offence and convicted and sentenced them as reproduced above, while co-accused Dino and Nabbu were acquitted by awarding benefit of doubt to them; hence, the present appellant filed the present criminal appeal.
7. ' Learned counsel for the appellant has argued that the appellant was falsely implicated in the case at the instance of one Zamindar of Johi. It is further argued that on the basis of very same evidence of the prosecution witnesses, two co-accused stand acquitted by the trial Court by awarding benefit of doubt to them and, therefore, the appellant is also entitled to the very same benefit.
8. ' Learned counsel for the State does not support the judgment of conviction and sentence passed by the trial Court by stating that the recoveries of fire-arms are alleged against the co-accused while only hatchet was recovered from the possession of the present appellant; and that admittedly the only allegation against the appellant and the co-accused was that they were only found having collected in the jungle and no allegation of any untoward act is attributed to the appellant, so that any inference could have been drawn that he had made preparation for the purpose of proceeding to commit any d. It is further argued that merely because they were seen having collected at the said place, such a fact by itself would not indicate any intention on the part of the appellant for having gone there, with the co-accused with intention to commit the dacoity.
9. ' Learned counsel for the appellant has cited Shameer and others v. The State 1989 PCrLJ 1256, wherein it was observed that where no overt act was attributed to the accused appellant to indicate that he had made preparation towards commission of dacoity nor any details of any such preparation to lead to such a conclusion, it could not be safely drawn that the assembling of the appellant with the co-accused at the given place was for the purpose of committing dacoity.
10. ' As learned counsel 'appearing for the State has not supported the judgment of conviction and sentence, impugned herein, this criminal appeal is hereby allowed and the impugned judgment is set aside by giving the benefit of doubt to the appellant, he stands acquitted. The appellant is on bail and his bail bond stand cancelled.