' AKHTAR ZAMAN MALGHANI, J.---By this common judgment I intend to dispose of Criminal Appeal No,9 of 2005 and Criminal Appeal No,29 of 2005 arising out of the same and common judgment dated 16-12-2004 rendered by Additional Sessions Judge-I, Quetta, whereby; the appellants were found guilty under sections 399, 400 and 402, P.P.C. And sentenced as under:--
(1) Under section 399, P.P.C. They were sentenced to suffer three years' R.I. Each with fine of Rs,20,000 each or in default of payment of fine to further undergo six months' S.I.
(2) Under section 400, P.P.C. They were sentenced to three years' R.I. Each and fine of Rs,20,000 each or in default thereof to further undergo six months' S.I.
(3) Under section 402, P.P.C. The appellants were sentenced to three years' R.I. Each with fine of Rs,20,000 each or in default of payment of fine to further undergo six months' S.I.
' Benefit of section 382-B, Cr.P.C. Was also extended in their favour.
2. Briefly stated, facts of the case are that on 20-6-2003 a case under sections 399, 400 and 402, P.P.C. Was registered in Police Station City vide F.I.R.No,113 of 2003 on the report of Malik Muhammad Iqbal I.P./S.H.O. Wherein it was slated that on the same day a secret information was received about assembling of Muhammad Alam alias Shin along with his other companions in Mali Bagh Park in order to commit dacoity, whereupon he along with other police officials reached there and found five persons sitting near southern wall of the Park, out of whom- three persons namely Muhammad Alam, Muhammad Qasim and Fida Muhammad alias Atta Gul were apprehended whereas two persons succeeded in escaping. On personal search of Muhammad Alam one Kalakove containing 23 live cartridges, two magazines of Magaruf pistol containing 9 live cartridges, one Rado wristwatch, Rs,21,310 in cash, one pay in slip of Rs,10,80,000 dated 12-5-2003 pertaining to account of Farooq Flour Mill were recovered. From the search of Muhammad Qasim one pistol loaded with 5 live cartridges, one additional magazine containing 5 live cartridges and one Registration Book bearing No,QAK-5348 were recovered whereas; from the personal search of Fida Muhammad one Rado wristwatch was recovered. The investigation was carried out by Behram Khan, S.I. Who recorded statements of the witnesses and arrested Saat Muhammad accused. He also took into possession conviction slips as well as forms of identification parade tests wherein victims of various dacoities/robberies identified the appellants to be involved in such offences. After investigation he submitted challan.
3. On commencement of trial charge was read over to the appellants, to which they pleaded not guilty. The prosecution in order to substantiate the accusation produced five witnesses. At the end of prosecution evidence the appellants were examined under section 342, Cr.P.C. Wherein they denied all the allegations. The appellants Muhammad Alam, Fida Muhammad, Muhammad Qasim and Saat Muhammad also opted to give statements on oath and produced four witnesses in their defence.
4. The learned Additional Sessions Judge-I, Quetta after hearing the parties found the appellants guilty under sections 399, 400 and 402, P.P.C. And sentenced them as mentioned above.
5. I have heard the learned counsel for the appellants as well as learned State counsel and have also gone through the impugned judgment.
6. Mr. Aamir Afridi counsel for appellants Muhammad- Alam and Saat Muhammad contended that the appellants were arrested from a Snooker Club on 3-6-2003 which news was published in newspapers and in this regard not only representatives of the newspapers were produced but also owner of the club was examined in defence, yet the learned trial Court ignoring, the overwhelming evidence on record produced in defence, convicted the appellants on the allegations that on 20- 6-2003 they assembled in Sadiq Shaheed Kasi Park in order to commit dacoity. He further contended that there was no evidence to conclude that the appellant assembled preparing themselves to commit dacoit or with intention to. Commit dacoity, therefore, mere presence, even if prosecution case is taken as it is, is not sufficient to conclude that purpose of assembling of the appellants was to commit dacoity, as such; their conviction under sections 399 and 402, P.P.C. Was bad in law. According to him there was no evidence on record to show that the appellants were members of a gang, as such; they could not have been convicted under section 400, P.P.C. He also contended that the learned Judge erred in law by relying on the disclosure which was not admissible in evidence.
7. Mrs. Shabana Azeem, Advocate for the appellant Muhammad Qasim vehemently argued that the prosecution dishonestly showed arrest of the appellant from a public place in order to avoid compliance of section 103, Cr.P.C. She further contended that a joint recovery memo. Was prepared by the police in respect of different weapons/articles shown to have been taken into possession from the appellant which was illegal in view of the dictum laid down by the Hon'ble Supreme Court in the judgment reported in PLD 1997 SC 417. According to her the story narrated by the prosecution witnesses was unbelievable and appears to be concocted one as admittedly in station diary, wherein the information received from informer was allegedly, incorporated, was not produced during the trial. The prosecution has miserably failed to prove the charge against the appellant, as such; he is entitled to acquittal. In support of her contentions the learned counsel also placed reliance on the judgments reported in 2002 PCr.LJ 5450, 2000 PCr.LJ 478, PLD 1996 Kar. 146, . 1990 PCr.LJ 41, 1999 PCr.LJ 1444 and PLD 1994 Lah.
383.
8. On the other hand, the learned State counsel contended that the appellants were caught red- handed along with fire-arms which shows that they have gathered there in order to commit dacoity as they were previously involved in a number of cases wherein convictions were recorded.
9. I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the evidence produced during trial. According to the prosecution allegations on receiving secret information about assembling of some persons in Sadiq Shaheed Kasi Park, generally known as Mali. Bagh, in order to commit dacoity, the police raided the said place and succeeded in overpowering three persons whereas two made their escape good. On search of arrested persons one Kalakov and one Magaruf Pistol besides other articles such as wristwatches, registration book suspected to have been stolen, were recovered. In order to substantiate the allegations the prosecution mainly relies upon the statements of P.W.1 Muhammad Iqbal, P.W.2 Ishfaq Hussain Jamali and P.W.3 Manzoor Ahmed. Besides; the prosecution also placed reliance on the disclosure made by appellants Muhammad Alam, Fida Muhammad and Muhammad Qasim during the investigation. For such purpose the prosecution produced P.W.4 Fayyaz Ahmed, S.-I.
10. The prosecution has also produced conviction slips showing that Muhammad. Alam was convicted under section 17(3) by Additional Sessions Judge-Ill, Quetta as well as under section 468, P.P.C. As far as; disclosure made by the appellants with regard to commission of a number of dacoities is concerned, same in my view, is not admissible in evidence having been made in front of police officers because such disclosures did not lead tp discovery of any new fact or recovery of any incriminating article, making them admissible under Article 40 of the Qanun-e-Shahadat, 1984.
However; even if such disclosures are excluded from consideration, there is other sufficient evidence on record proving that the appellants were arrested at about 8-30 p.m. From a park and at the time of their arrest two of them were armed with Kalakov and 'Magaruf pistol. All the prosecution witnesses supported the prosecution version and despite lengthy cross-examination remained firm and unshattered.' It could not be conceived that in order to falsely enrope the appellants in the commission of offence the police would plant costly Kalakov and Magaruf pistol from their own pocket. On the other hand, the defence has taken plea that the appellants except Saat Muhammad were arrested from a Snooker Club and in this regard they mainly relies upon the newspapers clipping wherein it has been reported that some persons beloning to a gang of dacoits were arrested by the police on' 3-6-2003, firstly, any such news, which has been obtained through some unknown sources, without disclpsing the name of such source, is not admissible in evidence, secondly, the witnesses produced in this regard have stated that they took photographs of those accused persons but none of the photographs was produced during the trial in order to show that those accused persons were in fact the appellants. The perusal of news ptiblished in daily Mashriq shows that one of the accused was Raheem alias whereas in daily Awam the name has been shown as Alam alias Shin. The news published in both the newspapers are also contradictory with regard to place of arrest. According to the news published in daily Mashriq the dacoits were arrested from Snooker Club situated at Faiz Muhammad Road whereas according to news of daily "Awam" they were arrested from Galashier Hotel situated near Liaquat Bazar. The number of persons arrested allegedly from the Snooker Club published in news is also contradictory to the statement of appellant Muhammad Alam according to whom 7-8 persons were arrested along with him whereas according to news published in newspapers four persons were arrested. Similarly; D.W.3 Ajmal Khan and D.W.4 Mehboob Khan also contradicted appellant Muhammad Alam with regard to number of persons arrested from the Snooker Club. According to D.W.3 Ajmal Khan they used to enter names of the persons coming to Snooker Club in a register, but he failed to produce any such register to show that the appellants were in fact playing snooker in the Club on 3-6-2003, as 'such, statements 'of the defence witnesses are neither probable nor believable. In view of above discussion, if the prosecution and defence versions are put in juxta- position, the prosecution version is more probable and believable and I have no reasons to disbelieve the straightforward and confidence-inspiring evidence furnished by the prosecution witnesses. As regards non-association of public witnesses in recovery proceedings, suffice to observe that the police has not gone for search of any place but purpose for the raid was to arrest the appellants who, according to the secret information, gathered in the Park in order to commit dacoity.
11. After believing the prosecution version the question arises whether mere carrying lethal weapons is sufficient to find the appellants guilty Under sections 399, 400 and 402, P.P.C. It may be seen that section 399, P.P.C. Provides punishment for the accused who makes any preparation for committing dacoity whereas any person belonging to a gang of persons associated for the purpose of habitually committing dacoity is liable to be punished under section 400, P.P.C. Section 402, P.P.C. Provides punishment for the culprits,, five or more, assembled for the purpose of committing dacoity. The offence under section 400, P.P.0 is creature of statute and is intended to break up the gang by punishing their associates. In order to establish the guilt of accused under this section it is incumbent upon the prosecution to show that a particular accused belongs to such a gang who habitually commits dacoities. The word "habitually" imports a sense of continuity e.g. Accused being concerned in a large number of dacoities in a comparatively short span of time and for attracting provisions of section 400, P.P.C. It must be shown that association of the accused with ,the gang was not casual but was intended to be habitual. After perusal of prosecution evidence, I am of the view that it has failed to establish that the appellants were members of some gang habitually involved in a large number of dacoities. Merely because some of the appellants were 'previously convicted for robberies or dacoities is not sufficient to find the appellants guilty under section 400, P.P.C. Without showing that in such robberies/dacoities all of them were involved, as such; were members of a gang of persons associated for the purpose of habitually committing dacoity.
12. Admittedly; the appellants were found assembled in a Park after sunset armed with lethal weapons but in order to attract provisions of section 399, P.P.C. The prosecution has to establish that the appellants were the persons who had conceived the design of committing dacoity whereas section 402, P.P.C. Applies to the case of mere assembling without proof of other preparation, therefore; where the accused charged with assembling and making preparation to commit dacoity were found in possession of lethal weapons and other incriminating articles, could only be convicted under section 399, P.P.0 as the element of section 402, P.P.0 is included in section 399, P.P.0 and it would be improper to convict such accused under both the offences. In this regard I am fortified by the judgment reported in 1971 PCr.LJ 373. The relevant observations are reproduced hereinbelow:-- "It cannot be said generally that an offence under section 399 includes an offence under section 402 of the Pakistan Penal Code. But in the instant case, according to the charges framed, the elements of section 402 of the Pakistan Penal Code are clearly included in the charge under section 399 of the Pakistan Penal Code. Thus we are inclined to take the view that a conviction under both the sections, that is, under sections 399 and 402 of the Pakistan Penal Code would be improper and illegal."
' In order to see whether purpose of assembling of five or more persons was to prepare themselves to commit dacoity, each case has to be considered on its own merits as no hard and fast rule can be laid down that any particular act or any particular kind of steps towards commission of offence are necessary to constitute preparation because it is indeed only known to the person in whose mind the intention is conceived, as such; where the prosecution has established that character and circumstance of an act suggest that it was done with particular intention then under Article 122 of the Qanun-e-Shahadat, 1984 it may be assumed that he had that intention unless he proves the contrary. In the instant case, it may be seen that appellants Muhammad Alam and Fida Muhammad are residents of Chaman whereas Muhammad Qasim was residing in Momenabad, Quetta and Saat Muhammad in Pashtoonabad, Quetta therefore; their assembly at Sadiq Shaheed Kasi Park, faraway from their places of residence with armed weapons after sunset suggests in absence of any reasonable explanation of their presence there, that their intention was to commit dacoity and for that purpose they have made preparation by arming themselves with lethal weapons, as such; they were rightly found guilty under section 399, P.P.C. However, as already observed, conviction under sections 399 and 402, P.P.C. At the same time would be improper in law as ingredients of section 402, P.P.C. Are also included in section 399, P.P.C. Therefore; the conviction recorded under section 402, P.P.C. Cannot be sustained.
For the foregoing reasons, I am inclined to set aside the conviction recorded under sections 400 and 402, P.P.C. And uphold the conviction recorded under section 399, P.P.C. Resultantly; the judgment of the learned trial Court is set aside to the extent of conviction recorded under sections 400 and 402, P.P.C. Whereas conviction recorded under section 399, P.P.C. Is maintained.
' The appeals are disposed of accordingly.