MUHAMMAD MUNIR KHAN, J: -- These six Criminal Appeals No.224 of 1991 filed by Shaffaqat Ali, No.428 of 1991 filed by Abdul Wadood, No.304 of 1991 filed by Taslim Ahmad, No.225 of 1991 filed by Muhammad Yusuf, No.299 of 1991 filed by Bashir Ahmad and No.228 of 1991 filed by Salamat Ali, appellants, arise from the same judgment passed in a case in which the appellants were jointly tried by Presiding Officer, Special Court (Suppression of Terrorist Activities), Lahore, whereby he, on 13-3-1991 convicted them under section 399, P.P.C. And sentenced them to five years' R.I. And a fine of Rs.20,000 each or in default thereof further. R.I. For one year. We propose to dispose of them through this single judgment.
2. The charge against the appellants was that on 26-2-1989 they were making preparation for committing the dacoity while equipped with fire-arms, and were arrested by the police from Suzuki Pick-Up NO.LHN/3060, near Lady MacLagan Girls High School, Lodge Road, Lahore, by Mian Nazir Ahmad, Inspector/S.H.O., P.W.6, and the other police officials. They denied the charge and claimed to be tried.
3. To prove its case, the prosecution produced six witnesses. Mian Nazir Ahmad, P.W.6, stated that on 6-2-1989 he, Rehmat Ali Butt, S.I. P.W.5 and other police officials, were present in Tollinton Market.
On receiving information, that appellants/accused were preparing to commit dacoity and were going from Chowk Istambol towards MA.O. College at Bank Road, while carrying fire-arms, in Pick- up Suzuki No.3060/LHN, they chased the Suzuki Pick-up and intercepted the same at MacLagan Road. Three persons namely Abdul Wadood, Maula and Ahmad Gul sitting on the front seat ran away and could not be apprehended, whereas the appellants were apprehended. At that time Taslim, appellant, was armed with Klashnikov P.1, Magazines P.2, 22 bullets P.3/1-22, which were taken into possession vide memo. Exh. P.H. Muhammad Yusuf appellant was having revolver P.5 and 5 bullets P.5/1-5, which were taken into possession vide memo. Exh. P.K. Sabir Ali, appellant was armed with gun P.7 and 5 cartridges P.8/1-4, which were recovered and taken into possession vide memo. Exh. P.L. Salamat Ali, appellant was carrying a gun P.9 and bullets P.10 which were recovered and taken into possession vide memo. Exh. P.M., Dost Muhammad, appellant, was armed with Klashnikov P.1 and 25 bullets P.12/1-25, 3 magazines P.13/1-3 and bandolier P.14, which were taken into possession vide memo. Exh. P.N., Bashir Ahmad appellant, armed with one mozar P.15 and 4 bullets P.16/1-4, which were taken into possession vide memo. Exh. P.O. He also took into possession the Suzuki Pick-up P.17, vide memo. Exh. P.Q. Rehmat Ali S.I. P.W.5 fully supported the statement of Mian Nazir Ahmad, Inspector P.W.6. The rest of the evidence was with regard to the service of warrants of arrest issued against Ahmad Gul, Abdul Wadood, Dost Muhammad, Muhammad Sabir and the copies of the proclamation. They have proved the reports made by them.
4. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances, allegations and also the incriminating evidence against them. They produced six witnesses in defence.
5. Believing the prosecution case and evidence produced by it and disbelieving the plea of false implication raised by the appellants and defence evidence, the trial Court has convicted and sentenced them as stated above.
6. Learned counsel for the appellants mainly contended that the important ingredients of offence under section 399, P.P.C. i.e. `preparation' and that also to commit the `dacoity' have not been proved by the prosecution. Learned counsel for the State is not in a position to controvert him.
7. We have carefully attended to the arguments addressed by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellants. We find that there is no direct or indirect evidence to the effect that the appellants had prepared, or was making preparation and that the preparation made by them or the preparation being made by them was to commit dacoity and no other offence. From the circumstances of the arrest of the appellants duly armed it cannot/should not be inferred that they were making preparation to commit an offence and that too of dacoity. In the instant case the persons who had informed the police that the appellants were making preparation to commit dacoity have not been produced.
The prosecution evidence simply is that the appellants while travelling in a Suzuki Pick-up were found carrying fire-arms with them. It may be noted here that they have separately been charged and tried for the offence under the Arms Ordinance. Since in the instant case, except the inadmissible evidence of Mian Nazir Ahmad, P.W.6 that the appellants were preparing to commit dacoity, there is nothing on record in proof of the allegations that the appellants had prepared or were making preparation to commit dacoity, the possibility that the appellants were carrying arms for a purpose other than that of committing dacoity, e.g. For abduction, for roiting, for murder cannot be excluded. So, their arrest with fire-arms will not bring their act within the purview of section 399, P.P.C. Since it is very easy to concoct a case under section 399, P.P.C. Alleging that the persons carrying weapons were making preparation to commit dacoity or that the police had a secret information to the effect that some persons were preparing to commit dacoity, therefore,' strong, cogent, clear and definite evidence would be required to prove that the accused were really making `preparation' to commit `dacoity'. It goes without saying this offence of preparation to commit dacoity is an exception to the general rule that the two stages towards the commission of crime i.e. Intentions and preparations are no offence and the crime would start from the stage of attempt to commit the same.
8. Pursuant to the above discussion, all the six appeals are accepted and the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case.