1. ' Appellants abovenamed being aggrieved by Judgment, dated 31st January, 1977 of the 1st Additional Sessions Judge Jacobabad by which appellants have been convicted under section /402, P.P.C. As well as under section 13-D, Arms Ordinance and sentenced to suffer R.I. For 3 years and R.I. For 1 year respectively, have preferred the-above appeal on the following facts and grounds:- , ' The allegations against the appellants are that they alongwith absconding accused Goadho as well as acquitted co-accused Amanullah had made preparation and assembled in abandoned railway quarters near Garang bridge on Khirtan canal duly armed with fire-arms i,e, gun, rifle, revolver, for committing robbery and that they were armed with above weapons without licence.
2. The appellants have pleaded not guilty to the amended charge which was read out to them in Court.
3. ' The prosecution story is, that on 30th April, 1974 S.H.O. Abdul Khalique of P.S. Mouladad, alongwith A.S.I. Ghulam Hussain Shah, H.C. Bangle Khan, P.C. Mumtaz, P.C. Ghulam Nabi, P.C. Mehboob and P.C.
4. Waris Ali had gone for patrolling at various places and when they reached at Garang bridge, the S.H.O. Received spy information, that five armed persons were concealing themselves in the abandoned railway quarters and they were armed for the purpose of committing dacoity. The S.H.O. Alongwith his subordinate staff went there and raided the railway quarters, then five persons came out of the quarters, who were armed with guns, rifles and revolver. The police party encircled them and caught hold of them and two persons ran away. On enquiry those persons disclosed their names as Dur Muhammad, who was armed with single barrel gun duly loaded and 10 live cartridges in a leather bag. The other appellant disclosed his name as Gul Hasan, who was armed with 7 mm rifle duly loaded and five live bullets, while the third appellant, who disclosed his name as Akbar had a revolver loaded with six bullets. The S.H.O. Enquired from the three appellants about their licences for the weapons which they were carrying, but they told that they had none. The appellant further disclosed, that two companions, who had run away were co-accused Amanullah Khoso and absconding accused Godho Bhund. The S.H.O. Secured the arms and ammunition from the appellants under the Mashirnamas in the presence of A.S.I. Ghulam Hussain Shah and H.C.
5. Bangle Khan, who were made to act as Mashirs. Then the Police party brought the appellants and the property to the Police Station Mouladad, where the S.H.O. Filed F.I.R. Against all the appellants under section 399./402, P.P.C. And he also filed separate F.I.Rs, against the three appellant pers ns.
6. The appellants were then challaned in the Court of S.D.M. Jacobabad on 30th May, 1974. The absconding accused Amanullah was arrested by the same S.H.O. Mr. Abdul Khalique Ghoto on 27th July, 1974, in the presence of A.S.I Ghulam Hussain Shah and H.C. Muhammad Hayat and he was challaned in the same Court on 28th July, 1974. All the cases after usual committal inquiry were committed to the Court of Sessions, from where the cases were received by transfer to trial Court for disposal.
7. ' The appellants have denied their guilt. Appellant Gul Hassan in his statement under section 342, Cr.P.C. Has stated, that the case against him is false and he is innocent. He has further stated, that he was Had of Mir Ahmed Khan Jakhrani and there is trible dispute between Baqa Muhammad Jakhrani and Mir Ahmed Khan Jakhrani and that is why he is implicated in the false case by Baqa Muhammad Jakhrani. He has further stated, that he was called from his house during day time and was detained at P.S. Mouladad for couple of days and then this false case was foisted on him. The Police Officer disposed against him at the instance of Baqa Muhammad Khan Jakhrani. Appellant Dur Muhammad adopted the statement of co-accused Gul Hassan, who is his relative. Appellant Akbar in his statement has stated, that he was innocent. On 19th April, 1974 he had come to attend the Court of Civil Judge and F.C.M, Jacobabad, in a case under section 307/353 etc. P.P.C, and 13-D, Arms Act as appellants. On that day he was arrested by A.S.I. Ghulam Hussain Shah who of P.S. Mouladad outside the Court premises. Appellant Amanullah in his statement has stated, that the case was false and that he was falsely implicated by the Police Officers at the instance of Fakhruddin Khan Khoso, with whom he has enmity. Appellant Akbar also examined Nazir Ahmed Shah Clerk of the Court, as a defence witness.
8. ' The prosecution examined two witnesses. P.W.1 Mr. Abdul Khalique Ghoto is the complainant and P.W. 2 A.S.I. Ghulam Husain Shah is the eye-witness and he also acted as Mashir.
9. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed, while acquitted co-accused Amanullah, as hereinbefore mentioned and consequently the appellants have filed the above appeal on the grounds mentioned in the memo. Of appeal.
10. ' The learned Advocate for the appellants in support of the above appeal submitted as under:-
(a) That prosecution has not examined a single independent witness for the case in question and the alleged recovery Mashir P.W.2 H.C. Ghulam Shah being police official cannot be ,relied upon, specially when the Brohi village was only one furlong away from the Vardat, where independent and respectable witnesses of the locality could have been available to 1.0. But in spite of this the 1.0.
11. Did not wish to take the independent and respectable Mashir from the said village and consequently the mandatory provisions of section 103, Cr.P.C. Were violated.
(b) That no offence under section 402, P.P.C. Has been made out against the appellants as according to the prosecution case beside the three appellants, acquitted co-accused Amanullah and one more absconding accused were found together, but the learned trial Court has disbelieved the presence of co-accuse Amanullah and consequently the number of the persons alleged to have been found together would be less than 5 persons.
(c) That the appellant Akbar was arrested by the police earlier on 19th April, 1974 and consequently the assertion made by this appellant in his 342, Cr.P.C. Statement cannot be overlooked.
(d) That the appellants have alleged enmity in their 342, Cr.P.C. Statements with Zamindars, on account of which they have been falsely involved in the present case, has not been properly appreciated by the learned trial Court.
(e) That there is no evidence at all on record even to prima facie prove that appellants and the acquitted co-accused and alleged absconding accused had gathered together for committing decoity. In addition to this, it is an admitted position, that although appellants are alleged to have been armed, they offered no resistance to the police party, at the time of alleged arrest.
(f) That the joint trial of the appellants under section 13-D of the Arms Ordinance was illegal and on this alone the conviction of the appellants in respect of these offences is liable to be set aside.
12. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment, as prosecution has established its case beyond reasonable doubt against all the appellants and the offence under section 402, P.P.C. Stands proved by the statements of the two prosecution witnesses; and the alleged defect in the joint trial is curable under the provisions of sections 234 and 235, Cr.P.C.
13. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the Record and Proceedings of the learned trial Court as well as the impugned judgment.
14. Prosecution case rests upon the statement of P.W. Abdul Khaliq S.H.0 (complainant) and P.W.
15. Ghulam Hussain Shah A.S.I. (Mashir), both of them police. Officials. P.W. Abdul Khaliq in his cross- examination admitted, that there was a village of Brohis about one furlong away from railway quarters in question. In spite of this he has given no reasons, why he did not pick up independent and respectable Mashirs from the said village, before proceeding to railway quarters in question, in violation of the mandatory provisions of section 103, Cr.P.C. Appellant Gul Hassan and Dur Muhammd in their statement under section 342, Cr.P.C. Have claimed to be Haris of Mir Ahmed Khan Jakrani and have alleged, that on account of tribal dispute between Baga Muhammad Khan Jakrani and said Mir Ahmed Khan Jakrani, they have been involved in this false case by P.W. Abdul Khaliq, who is very well-known to Baga Muhammad Khan Jakrani. This witness has admitted that he knew Baga Jakrani for 3/4 years, but has denied the suggestions as put to him in cross- examination. He further admitted, that case under sections 307, 353 and 13-D, Arms Act was filed by S.I. Abdul Ghaffar againt appellant Akbar. He also denied suggestion put to him, that at the instance of Jan Muhammad Buledi he has falsely involved appellant Akbar. The names of other two co-accused Amanullah (acquitted) and Ghodo (absconding) are mentioned in F.I.R. P.W. Ghulam Hussain A.S.I. In his cross-examination admitted, that P.W. Abdul Khaliq on his own announced this special duty at 5.00 p.m., at the time of roll call and did not disclose that the said duty was to be done under orders of any superior officer nor he disclosed the time and place, where they were supposed to go. This witness denied, that he had arrested appellant Akbar from outside the Court of Civil Judge & F.C.M. Jacobabad, as well as other suggestions put to him in respect of defence theory. Appellant Akbar examined D.W.1 Nazir Ahmed Shah, Clerk of 1st A.D.J., Jacobabad, who produced Exh. 34, which shows police obtained orders to arrest appellant Akbar outside Court from Civil Judge and F.C.M. Jacobabad on 19th April, 1974. According to appellant he was in fact arrested on 19th April, 1974 by police, when he came to attend Court for hearing of case against him under section 307/353 and 13-D, Arms Act and therefore involved in this case falsely.
16. ' It is clear from the above facts on record, that P.W. Abdul Khaliq has given no explanation at all for not picking up independent and respectable Mashirs from village of Brohis, which was hardly one furlong away from railway quarters in question, in which appellants are alleged to have been hiding. In addition to this, on account of explanation given by appellants in their 342, Cr.P.C.
17. Statements about the reasons, why they have been implicated in this case, it would be unsafe to rely on the statements of P.W. Abdul Khaliq and P W. Ghulam Hussain in respect of alleged recoveries against the appellants and as such in my opinion prosecution has failed to establish its case under section 13-D, Arms Act, against all the appellants.
18. ' As far as conviction of the appellants under section 402, P.P.C. Is concerned. I find no evidence at all, that appellants had gathered in railway quarters in question, with intention to commit dacoity.
19. In addition to this I have disbelieved alleged recoveries of fire-arms from the possession of appellants, for the reasons given in preceding para. And as such in my opinion prosecution has also failed to establish its case under section 402, P.P.C. Against the appellants, beyond reasonable doubt. It may be noted that the learned trial Court acquitted co-accused Amanullah and thus rquisite number of persons required for conviction under section 402, P.P.C. Falls short.
20. ' Therefore I allow the above appeal and set aside conviction and sentences awarded to all the appellants, under impugned judgment and acquit them by giving them benefit of doubt and discharge the bail bonds executed by them in above appeal.