' SADIQ HUSSAIN' BHATTI, J.---By this Common judgment, I intend to dispose of the aforementioned two criminal appeals, which arises of the same impugned judgment.
2. Appellants Ahmed Ali, Pir Bux, Ghulam Muhammad, Shafique and Bashir were booked in Crime No,20 of 2011, registered at Police Station Kunri on 21-3-2011 at 2300 hours, lodged by AS!
Muhammad Uris Sahar on behalf of the State under sections,399/402, P.P.C.
3. The prosecution story as narrated in the F.I.R. Lodged by complainant is as under:- "That on 21-3-2011, complainant ASI Muhammad Uris Sahar stated that on the day of incident he along with subordinate staff HC Khuda Bux, PC Akhtar Saeed and Muhammad Azeem left Police Station vide Entry No,26 at 2055 hours for patrolling and checking in government vehicle driven by PC Yakoob. When they reached near Dargah Fakir Essa Wali on Umer kot-Kunri Road, they saw on headlight of vehicle 5 persons armed with weapons were standing on the road in order to commit dacoity. Police identified them on the headlight of vehicle to be Pir Bux, Ghulam Muhammad, Ahmed Ali and Bashir armed with pistols and Shafique Memon armed with hatchet. On seeing police party the culprits escaped taking advantage of the darkness while one was apprehended who, on enquiry, disclosed his name to be Ahmed Ali. One pistol and 5 bullets were also secured and mashirnama of arrest and recovery was prepared in presence of HC Khuda Bux and PC Akhtar Saeed. Thereafter, the accused And property were taken to police station where ASI Muhammad Uris Sahar lodged the F.I.R. On behalf of the State. A separate case was also registered against accused Ahmed Ali under section 13(d) Arms Ordinance, as he could not produce the license."
4. Subsequently, accused Pir Bux, Ghulam Muhammad, Shafique and Bashir were also arrested, but nothing was recovered from their possession. The Investigating Officer after completing the investigation submitted challan against accused named above under sections 399/402, P.P.C.
5. During the trial prosecution examined complainant P. W.1 ASI Muhammad Uris Sahar at Exh.12, who produced mashirnama of arrest of accused Ahmed Ali and recovery of pistol from his possession and F.I.R. P.W. H.C. Khuda Bux was examined at Exh.13, who also verified the mashirnama of arrest and recovery and said that it bears his signature. SIO/SIP Muhammad Azeem, who was I.O.
Of the case, was examined as P.W.3 Exh.15. In his deposition he stated that he' submitted challan against accused Ahmed Ali in the Court showing accused Ghulam Muhammad, Pir Bux, Shafique and Bashir as absconder. He further stated that on 23-5-2011 he arrested absconding accused Ghulam Muhammad and Pir Bux in presence of mashirs vide mashirnarna Exhs.15-A and 15-B. On 11-5-2011, he also arrested accused Bashir Ahmed. At the conclusion of the prosecution case all the accused were examined under section 342, Cr.P.C. And they all denied the prosecution case however none of them examined himself on oath nor examined any witness in his defence. After recording the evidence the trial Court convicted all the accused personsunder section 399, P.P.C.
To suffer rigorous imprisonment for 10 years and fine of Rs.20,000. They were also convicted under section 402, P.P.C. To suffer rigorous imprisonment for 7 years and fine of Rs. 25,000. Hence these appeals.
6. I have heard Ms. Shabana Kousar Jatoi and Mir Naeem Talpur, learned counsel for the appellants, learned A.P.-G. For the State and perused the record with their assistance. Learned A.P.- G. Only supports the appeals to the extent that sentences awarded to the appellants are harsh.
7. In the case in hand, the evidence against the accused/appellants is that all 5 appellants were standing on the road duly armed with the weapons and police identified them on the headlight of the official mobile Police. Even did not disclose how the accused persons were known to them previously or whether they were involved in other criminal cases; even police did not collect any independent evidence from or around the place of incident that they saw the accused persons tried to stop any vehicle or robbed any passerby. In this regard I may refer ingredients of 'sections 399/402, P.P.C. These sections firstly require that there should be 5 or more persons and secondly they assembled for the purpose of committing dacoity. It will therefore appear that both the ingredients are to be proved by the prosecution beyond all reasons doubts. In the present case the appellants were found together but it is not proved that they had assembled for the purpose of committing dacoity. In this regard, except the bare words of three prosecution witnesses there is no other reasonable material to infer that the 5 appellants had assembled for the purpose of committing dacoity. Moreover, in order to prove the offence under section 399/402, P.P.C. There should be some extraneous circumstance leading to the conclusion that the accused had assembled for the purpose of committing dacoity. Mere bare words of the prosecution witnesses will not be enough. If such a course is adopted it will be laying down a dangerous proposition of law. In such an eventuality, wherever 5 persons or more are found together they can be conveniently hauled up by the police for having assembled for the purpose of committing dacoity.
Therefore, as already mentioned, there should be some circumstance other than the bare words of the witnesses, which should lead to the conclusion, that the accused had assembled for the purpose of committing dacoity.
8. In several cases whenever the police arrested gang of 5 or more than 5 persons with firearm or deadly weapons it was generally claimed by the Investigating Officer that the accused disclosed at the spot or during investigation that they were preparing for committing dacoity, but usually, no evidence was collected by the Investigating Officer to prove these charges against the accused persons. Bare words of Investigating Officer that the accused persons have stated so, would neither lead to a conclusion that accused had assembled to prepare themselves for committing dacoity nor sufficient to convict them on account of their statement before the police unless confessed by them before the trial Court or there is some sound evidence to prove charges against them. Accused challaned under section 399/402, P.P.C., are not expected to B plead guilty when charge is framed against them. Similarly, the fate of such cases, in absence of any evidence, is also known to the concerned Investigating Officer particularly when the Investigation is dome by him, has been kept silent as to what efforts were made by prosecution to collect information about the back history of arrested accused persons and whether they were previously charged, or arrested or convicted in such crimes
9. There may be several questions raised by the common man regarding the incompetence and lack of knowledge of law by the concerned police: officials for not carrying out the investigation honestly. There is another difficulty in the case which is also coming in the way of prosecution. The same evidence comprising of P.W.1 ASI Muhammad Uris Sahar, P.W.2 HC Khuda Bux and P.W.3 I.O.
Muhammad Azeem, has been disbelieved by the trial Court so far as the offence under section 13(d), Arms Ordinance against accused/appellant Ahmed Ali is concerned, how can the same witnesses be believed in respect of the offences under sections 399 and. 402, P.P.C. Without any corroboration.
10. From the above discussion, I have no hesitation in holding that the offence under "section 399/402, P.P.C. Is not established against the appellants. Consequently, the conviction of the appellants is not sustainable. In the result, the appeals are allowed and the conviction and sentences of the appellants are set aside. The appellants shall be released forthwith if not required in any other case.