JUDGMENT - ' RASHID AZIZ KHAN, J.-- Shameer. (45), Nasir Abbas (21), Bhalak (33), Said (21) and Ashraf (30) were sent up for trial by Police Station Bhawana, District Jhang, for an offence under section 399/402,- P.V.C. The case came up for trial before the Special Court for Speedy Trials, Faisalabad, who, vide its judgment dated 2-12-1987, found all the accused guilty under section 402, P.P.C. And sentenced each of them to seven years' R.I. And a fine of Rs,5,000 each or in default 1-3/4 years' each. All of them were also found guilty under section 399, P.P.C. And sentenced to ten years' R.I. Each and a fine of Rs,10,000 each or in default 2-1/2 years' R.I. Each.. Both the sentences were ordered to run concurrently. The appellants have challenged their conviction and sentences which is the subject- matter of this appeal.
2. The prosecution story, in brief, is that on the night between 9/10-7-1987, the first informant alongwith a police contingent started from Jhang towards Chiniot to effect the arrest of proclaimed offenders in an official wagon. When the wagon reached Chiniot Morr, District Jhang, two persons, namely Saeed Ahmad P.W., and Khan Muhammad, given up P.W., also boarded the wagon. When the wagon reached Chamra Morr, they saw five persons armed with different fire- arms standing on the road side. On seeing the police wagon all of them started running away. Ch. Abdul Majid, S.I. Stopped the wagon and the police officials chased the said persons who were apprehended at the spot. At the time of their apprehension and on personal search, appellants Shameer was found in possession of a rifle alongwith 4 bullets; Ashraf was armed with a carbine with 3 live cartridges, Bhalak was armed with a carbine alongwith 3 cartridges, Nasir Abbas had a .303 carbine alongwith 4 bullets, and Said was armed with a .12 bore gun alongwith 4 cartridges.
The appellants did not possess any licence for keeping the said fire-arms therefore, a case under the Arms Ordinance was registered against them.Since they could not account for their presence at the spot alongwith the fire-arms, therefore, present case against them under section 399/402, P.P.C. Was also registered.
3. The report Exh.P.A. Was recorded by Ch. Abdul Majid, S.I. On 10-7-1987 at about 1-30 a.m. At Chamra Morr. Formal F.I.R. Exh.P.A./1 was recorded by Muhammad Arif, Muharrir, Head Constable, Police Station Bhawana, District Jhang, on 10-7-1987 at 1-55 a.m.
4. After the drafting of the complaint, Abdul Majid, S.I., sent the same to the concerned police station for registration of a case. Thereafter, he commenced the investigation and recorded the statements of the witnesses under section 161, P.P.C. From Shameer appellant, .7 mm rifle P.1 alongwith 4 bullets P.2/1-4 was recovered and secured vide memo. Exh.P.8 which was also attested by Saeed Ahmad, P.W. And Khan Muhammad, given up P.W. From Ashraf accused carbine P.3 and 3 cartridges P.4/1-3 were recovered and taken into possession vide memo. Exh.P.C. From Bhalak accused carbine P.5 alongwith 3 cartridges was recovered and secured vide memo. Exh.P.D. Nasir Abbas accused was armed with carbine .303 P.7, and 4 bullets P.8/1-4 which were taken into possession vide memo. Exh.P.E. Said accused had .12 bore gun P.9 with 4 cartridges, P.10/1-4 which were recovered and taken into possession vide memo. Exh.P.F. All the recovery memos were attested by the abovementioned two witnesses. Abdul Majid S.I. Inspected the spot and prepared a rough site plan Exh.P.G. Of the same. He arrested the appellants, and after completion of the investigation they were challaned.
5. The prosecution in support of its case produced 3 witnesses in all. P.W.1 Muhammad Arif, Head Constable had recorded the formal Exh.P.A./1.
P.W.2 Saeed Ahmad had accompanied the police party in the wagon and witnessed the arrest and recovery proceedings. P.W.3 Ch. Abdul Majid, S.I. Apprehended the appellants, effected the recoveries at their instance and challaned the accused.
'After recording the evidence of three prosecution witnesses, the District Attorney gave up Khan Muhammad and Munawar Akhtar, P.Ws., as unnecessary and closed the prosecution case.
6. At the conclusion of the prosecution evidence all the appellants were examined under section 342, Cr.P.C. Without oath, as well under section 340,Cr.P.C. On oath. All of them have refuted the entire prosecution evidence and have pleaded their innocence and false involvement in the present case.
7. It is contended by learned counsel for the appellants that the prosecution has miserably failed to prove its case beyond reasonable doubt. Submits tharthe appellants are alleged to have been arrested from a thoroughfare yet no respectable of the locality was associated with the recovery proceedings. Submits that even if the entire prosecution evidence is accepted yet no offence under sections 399 and 402, P.P.C. Is made out, because the prosecution has not led any evidence to prove that the appellants had assembled at the spot with a view to commit dacoity. The submissions of the learned counsel for the appellants have been controverted by the learned counsel for the State, according to whom, the appellants were apprehended with their fire-arms at the dead of the night therefore, no other presumption except that they had assembled for purposes of committing dacoity can be inferred.
8. We have heard the learned counsel for the parties at length and with their assistance gone through the record. In order to prove the arrest and recoveries at the instance of the appellants, the prosecution has produced Saeed Ahmad and Abdul Majid, S.I. P.Ws. 2 and 3, respectively. Both of them have given a detailed account of the proceedings. They were cross-examined at length but the defence has not challenged their presence at the spot nor any suggestion has been given that they were making false statement because of enmity or for any other motive. After having gone through the statements of both the witnesses, we are of the view that they are truthful witnesses and were present at the spot.
9. The next contention of the learned counsel for the appellants that the prosecution has not led any evidence which could indicate that the appellants had made preparation for the commission of dacoity or had assembled at the spot for purposes of the commission of dacoity needs serious consideration. A bare reading of section 399 indicates that a person can be guilty foi the commission of an offence under this section if he makes preparation for the commission of dacoity. According to this section, the main ingredient which has to be proved by the prosecution for establishing this offence is 'preparation for committing dacoity'. The prosecution's case is that they were standing on the highway and when they saw the police they ran away. No overt act which could indicate that the preparation was towards the commission of dacoity is available on the file. There is no evidence to indicate as to what preparation was made which can lead to the conclusion that the appellants were present at the spot with the intention of committing dacoity.
We are afraid, the mere fact that they were apprehended while armed would not be sufficient to establish the offence of preparation for committing dacoity against them. Therefore, case under section 399, P.P.C. Is not proved.
' Similarly, according to section 402, P.P.C. Any one of the five or more persons assembled for purposes of committing dacoity can be punished under this provision of law. A careful perusal of this section indicates that the main ingredients are; that five or more persons should assemble at a place and, secondly, the assembly should be for the purposes of committing dacoity. The prosecutioThin this case has been able to prove the assembly of the appellants at a particular place, but there is no evidence whatsoever which can indicate that the assembly was for purposes of committing dacoity. A perusal of this section indicates that an offence would be complete only when both the ingredients are present in a case. The assembly of the appellants simpliciter without there being any evidence with regard to the intention for committing dacoity, the offence cannot be proved.
' As we have already held that no evidence was led by the prosecution which can indicate that the assembly of the appellants was for purposes of committing dacoity, therefore, we hold that the prosecution has riot been able to prove its case against the appellants under section 402, P.P.C. As well: ' For what has been discussed above, we hold that the prosecution has not been able to prove its case against the appellants, therefore, their appeal is accepted and sentences are set aside. The appellants shall be released from custody forthwith if not required in any other case.