' Applicants Muhammad Ayub Memon and Qasim Soomro, who are detained in Crime No, 338 of 1989, Police Station Joharabad, under section 399, P.P.C., applied for bail before learned Sessions Judge (Central) Karachi, but without success. They have now approached this Court for bail by filing separate applications. This order of mine shall dispose of both these applications for bail.
2. On 9-7-1989, S.H.O. Nasceruddin of Police Station Joharabad was patrolling along with his subordinate staff when he received an information from some unknown lady that some persons were sitting in a graveyard under suspicious circumstances. The police party raided the place and apprehended applicants Muhammad Ayub Memon and Qasim Soomro along with Tariq and Mairaj. Three persons out of these culprits namely Saeed Rasool, Arshad and Qadir were, however, successful in escaping.. The S.H.O. Recovered one Kalashnikov with bullets from the possession of applicant Qasim Soomro. One shot gun of .12 bore with live cartridges was recovered from the possession of applicant Muhammad Ayub Memon. A case under section 399, P.P.C. Was accordingly registered against all the culprits and after usual investigation they were sent up to stand their trial.
3. I have heard learned counsel for the respective applicants and Mr. Shaukat H. Zubedi, learned AA-G. On behalf of the State. The latter has opposed the bail applications.
4. Section 399, P.P.C. Provides for punishment for preparation of the offence of dacoity. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. As observed in Karam Dass v. The State reported in AIR 1952 Pb. 249, section 399, P.P.C.
Contemplates that there is a general design to commit dacoit or to engage in an expedition for that purpose, though the plans of the dacoits are not matured. In plain English the Court has to satisfy itself that the accused had decided upon committing dacoity and it was for committing dacoit that they were making the preparation. The following observations made in Noga Lin and others v. Emperor, reported in AIR 1935 Rang. 294, are again relevant:-- "Against the other three appellants, who have been convicted under section 399, Penal Code, the only evidence is that they were warming themselves round a fire in the open paddy fields, that some of them got up and ran when the headman's party approached, and that two of them were carrying fire-arms and cartridges hidden in Shan bags. How these facts can amount to proof of preparation for committing dacoity passes my comprehension. No relevant circumstances have been proved from which it can be inferred that these persons had an intention to commit dacoity.
It is a common thing for villagers to sit round a fire and warm themselves on a cold night, and that is no offence."
5. The case reported as Jain Lal alias Jainath and others v. Emperor AIR 1943 Pat. 82 also supports the above view taken in the following words:-- 'But I do not think that any hard and fast rule can be laid down that any particular act or any particular kind of steps towards the commission of an offence are necessary to constitute 'preparation'. The essential thing seems to me to be that the prosecution must show that there were persons who had conceived the design of committing dacoity. Once the existence of such a conspiracy has been established then any step taken with the intention and for the purpose of forwarding that design may justify the Court in holding that there has been preparation within the meaning of the section."
6. The cases reported as Ghulam Haider and another v. The State 1986 P Cr. L J 2057, Muhammad Zada alias Dildar v. The State 1987 P Cr. L J 1607 and Shameer and others v. The State 1989 P Cr. L J 1256 are also relevant with a view to find out, if the allegations made against the applicants make out a case under section 399, P.P.C. In the last cited authority, a Division Bench of the Lahore High Court held that merely being armed with weapons would not be sufficient to establish an offence of making preparation for committing dacoit.
7. The evidence which has been collected by the police during the course of investigation of this case, simply suggests that the applicants and five others were found sitting in a graveyard, who were subsequently found to be armed with deadly weapons. In the light of the ratio of the above authorities, this piece of evidence alone is not sufficient to make out the case of preparation to commit dacoit. The words 'reasonable grounds for believing' mean such grounds as are based on reasons and logic and are not bereft of reasons. At any rate the case of both these applicants needs further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. And both of them are entitled to the grant of bail. Accordingly bail is allowed to both Muhammad Ayub Memon and Qasim Soomro in the sum of Rs,50,000 (Rupees fifty thousand) each with P.R. In the like amount to the satisfaction of learned Sessions Judge (Central) Karachi.