MUHAMMAD MUNIR KHAN, J.--- The appellant alongwith four others namely Ali Imran, Khalid Mehmood, Muhammad Qasim and Akhtar, were tried under section 399, P.P.C. On the charge that on 3-2-1990 at 4-40 p.m. While armed with various deadly weapons, were sitting in the graveyard Dhoopsari, Sanda Kalan, Lahore, making preparation to commit dacoity in the area of Police Station Sanda, Lahore. They denied the charge and claimed to be tried.
2. To prove its case, the prosecution produced six witnesses. Hakim Ali, S.I. P.W.1, had prepared the formal F.I.R. Exh. P.B. On the basis of complaint Exh. P.A. Zulfiqar Ali S.I., P.W.2, Iftikhar Ahmad H.C.
P.W.3, Muhammad Sharif, A.S.I., P.W.4, Muhammad Anwar, A.S.I. P.W.5 and Zamin Abbas, Inspector, P.W.6, are the witnesses of the arrest of the appellant and his co---accused while they were making preparation to commit decoity in the area of Police Station Sanda, Lahore. Zamin Abbas, Inspector, stated that he alongwith P.Ws.2 to 5 were present in Sanda Kalan. On receiving secret information they raided Dhoopsari graveyard and found the appellant and his co-accused sitting duly armed with various weapons talking about the intended decoity. On seeing the police party they tried to escape but were apprehended. On their arrest, different Fire-arms were recovered from them, for which they have no licence. P.Ws.2 to 5 supported the statement made by Zamin Abbas, Inspector.
3. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. The appellant and his co-accused produced nine witnesses in defence.
Muhammad Latif, Head Constable, D.W.1, and Maqbool Ahmad, Constable, D.W.2, were produced in defence of the appellant. -The appellant also produced the statements Exh. D.B. And D.C. Recorded by Magistrate in case under Arms Ordinance, 1965.
4. Believing the prosecution case and the evidence produced by it and disbelieving the plea of false implication of the appellant and the evidence produced by it, the trial Court has convicted and sentenced the appellant as stated above.
5. Learned counsel for the appellant contended that it was/is very easy to concoct a case under section 399, P.P.C. And very difficult to rebut the same, that strong evidence will be required in proof of offence under section 399, P.P.C. That P.Ws.2 to 5 all are police officials; and that there is no independent corroboration of their statements. Learned counsel for the State has supported the judgment of the trial Court:
6. We have considered the submissions made by the parties and have reviewed the entire evidence produced by them, statement made by the appellant under section 342, Cr.P.C. And the defence evidence produced by him, with care. We feel persuaded to agree with the learned counsel for the appellant. We find that the raid for the arrest of the appellant and his co-accused was pre-arranged so there was occasion for Zamin Abbas, Inspector, P.W.6, to associate independent persons from public to witness the arrest of the appellant and his co---accused from the graveyard. For the reason known to him he did not associate any person from public to witness the arrest and recoveries of weapons from the appellant and his co-accused. Furthermore, it is very easy to allege that persons were making preparation to commit decoity, so strong evidence would be required to show that the accused person were really making preparation to commit the decoity. Section 399, P.P.C. Is a exception to the general rule that intention to commit crime and preparation to commit the crime are no offence and the offence would start from the stage of attempt to commit the same, so exceptional evidence would be needed to prove this crime which I do not see in the case in hand.
7. Pursuant to the above discussion, the appeal is accepted and while giving him the benefit of doubt the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in other case.