1. ' ABDUL RAHIM KAZI, J.--By this judgment, we intend to dispose of these Four Appeals which arise out of same incident.
2. ' Briefly the facts as per prosecution case are that SIP Muhammad Abrar lodged report at his police station on 5-10-1993 stating therein that on 4-10-1994 he was posted at Police Station, Sharifabad.
3. On that day he along with his subordinate staff left at 8-00 p.m. And proceeded for patrolling. While patrolling from different places when he was going in the Government vehicle and crossing the bridge of Al-Karam one person was seen there who was waiving his hand in token to stop the vehicle. SIP Muhammad Abrar stopped his vehicle and found one spy who informed him that near the Railway Station towards Liquatabad to Eastern side on the ground of Al-Azam Square some persons have collected there for the purpose of committing some offence. He after receiving this information immediately rushed towards them. After reaching there SIP parked his vehicle there and proceeded towards the specified place along with his staff. After covering a distance of about 10/12 paces he saw that nine persons were available there. They encircled them and six persons were caught hold by them while three persons made their escape good. On the enquiry they disclosed their names and addresses. On their personal search police secured one Klashnikov loaded with a magazine containing 20 rounds; one visiting card, two telephone cards, one purse and Rs,18 in cash; police has secured one T.T. Pistol loaded with the bullets along with one wrist watch and some other documents on the personal search of accused Asif. From the personal search of accused Iqrar police has secured one T.T. Pistol along with five bullets, one wrist watch and one card. From the search of accused Khawar police secured one .32 bore revolver with six bullets, one dagger and some other documents were secured from the possession of accused Rizwan police had secured from the possession of accused Asim Abdullah, one Khanjar (knife), one purse one Identity Card, along with some other documents. All the articles were secured under the mashirnama in presence of mashirs, namely ASI Muhammad Akram and H.C. Muhammad Arif and the same were got attested by them. Thereafter, the accused along with the case properties were brought at police station where the cases were registered by him against all the accused. After completing the investigation the case was sent up under section 399/402/34, P.P.C. Statement of SIP Muhammad Abrar was recorded to the effect that the three absconding accused were not traceable and could not be apprehended. Accordingly, they were declared absconders. The charge was framed on 16-1-1994 under section 399/402, P.P.C. To which the accused who are present appellants pleaded not guilty and the case was tried.
4. ' The prosecution examined H.C. Muhammad Arif as Exh.4, ASI Muhammad Akram as Exh.5 and SIP Muhammad Abrar as Exh.6 and then the learned Special Public Prosecutor closed his side.
5. Statement of the accused were allegedly recorded under section 342, Cr.P.C. Vide Exhs. 8 to 13, wherein they denied all the allegations levelled against them by the prosecution and contended that they have been falsely implicated by the police; and that they were innocent. The accused also examined themselves on oath and examined D.Ws. Asif Majeed Shamsi, Farrukh Ahmed Sharif and Kashif Abdullah. Kashif Abdullah is real brother of accused Asim Abdullah. The learned trial Court heard the arguments of the learned counsel for parties and settled the following points for determination:--
(1) Whether the accused were assembled unlawfully for the purposes to commit an offence?
(2) Whether the accused were armed with deadly weapons for the preparation to commit dacoity?
(3) What offence, if any, the accused have committed?
6. ' The trial Court finding the accused guilty of the above offence, convicted them under section 399/402, P.P,C. And sentenced them to suffer R.I. For seven years under each section. The accused were allowed the benefit of section 382, Cr.P.C.
7. ' In Criminal Appeal No, 113 of 1994 the appellant Muhammad Rehan has challenged the judgment passed against him arising out of the same incident whereby he was sentenced to undergo R.I. For seven years and to pay fine of Rs,10,000 or in default of payment to undergo further R.I. For six months more for violation of section 8 of the Arms Ordinance as he was alleged to have armed with a Klashnikov and 20 bullets. Being aggrieved, the appellants have preferred these appeals.
8. ' We have heard the learned counsel for appellants and also Mr. Abdul Waheed Siddiqi, the learned counsel appearing for the State. The main contention raised by the learned counsel for appellants is with regard to first point for determination of the same does not fall either under section 399 or section 402, P.P.C. But the same would at the most be a simple case of unlawful assembly. He has referred to the provisions of section 399 and section 402, P.P.C. Which read as under:-- "399. Making preparation to commit duck. -- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
402. Assembling for purpose of committing dacoity. --Whoever, at any time after the passing of this Act shall be one of five or more persons assembled for the purposes of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
9. ' A plain reading of the above two sections would show that the points for determination as framed has nothing to show if the same was for the purpose of committing or making preparations to commit the dacoity. Simple unlawful assembly would fall under the provisions of section 141, P.P.C.
10. Which is punishable with imprisonment of either description for a term which may extend to six months or with fine or with both or section 144 or section 145, P.P.C. Which are punishable with imprisonment for two years or with fine or with both. In any case a person being a member of unlawful assembly though armed with deadly weapons by itself does not fall within the provisions of section 399 or section 402, P.P.C. Unless it is shown that the same was for the purposes of committing a dacoity. It may be pertinent to further observe that these provisions are applicable only in case the unlawful assembly is formed for the purpose of committing dacoity or any preparation is made for committing dacoity. In these circumstances, it would be necessary for the prosecution to show if the allegations made in the F.I.R. Or the offence can substantiate their contention in this respect. In view of the above provisions, we will discuss the evidence. The main witness of the prosecution is SIP Muhammad Abrar, who is also the complainant. According to this witness the police party were on patrol duty during the night of incident when they reached in front of Al-Karam by crossing the bridge one person gave him a signal for stopping the vehicle and on that signal he stopped the vehicle in which they were doing the patrol duty. In cross-examination to Mr. Sarwar Chuhan, Advocate for accused Asim Abdullah this witness states that he had received spy information a few minutes before 11-45 p.m. In the same cross-examination he states that the spy who gave him the information was already known to him. He further submits that the said spy was not his friend; and that the said spy was never challaned by him in any case but in the same cross-examination before giving the above statement he has stated that the spy was already known to him. Now it is argued that if this spy is known to the complainant then why the complainant did not disclose his name in the examination-in-chief or the report. It is pertinent to note that in the examination-in-chief he has said that "one person" had informed him. Even otherwise the evidence disclosed that the police party on receiving such information came to the spot and they found nine persons, being armed with weapons, were assembled there and seeing the police party they attempted to escape but the police party arrested six of them while the three could not be arrested. It is also argued by the learned counsel for appellants that according to the complainant he had premed the Mashirnama and recorded the statements under section 154, Cr.P.C. At the spot and this fact stands admitted. It has been pointed out from the statement under section 154, Cr.P.C. Which at page 45 and is said to have been recorded at 23-58 hours on 4-10- 1993 and gives the names of not only six apprehended accused but also the names for three absconders as Rafiq, Saleem and Karim Batoli. The F.I.R. Was recorded by the complainant at the police station on 5-10-1993 at 0100 hours which is one hour and two minutes after the recording of 161 statements at the spot. This F.I.R. Also includes the names of three absconding accused.
11. However, the complainant in his examination-in-chief admits that he had brought the accused "to his office" and started the interrogation wherein the accused disclosed the names of the absconders. Admittedly, the other two absconders except absconder Karim Baton were not previously known to the complainant. From this the learned counsel have argued as to how could the names of absconding accused be recorded in the statements recorded at the spot at the time the present six appellants were apprehended. This fact by itself goes to show that the whole proceedings have been prepared at the police station and this will give support to the statement of Kashif Abdullah, the defence witness that the accused Asim Abudllah was arrested from Snooker Club and his Motor Cycle was also taken from there. It may be observed that the said Motor Cycle was in the name of D.W. Kashif Abdullah, the brother of accused Asim Abdullah and that the same was returned to him through Major Ahsan to whom he was sent by Captain Karim at the time the accused were in custody with Federal Investigation Team. The complainant in his cross- examination has admitted to the extent that he had recovered the Registration Book from accused Asim Abdullah which he had returned to his brother but no such report of this fact was kept in the case. All these facts go to cast a cloud and raise a doubt in the prosecution case.
12. ' The judgment of the trial Court would show that the conviction has been based on two grounds only. Firstly the deposition of complainant and secondly application of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The learned counsel for appellants have pointed out that the above facts clearly show that the complainant's statement cannot be said to be above doubt and the very fact that there is no iota of evidence to show that the appellants had assembled there for commission of or preparation to commit the dacoity would itself absolve them of the charge under section 399/402, P.P.C. The learned counsel have also referred to the last three lines of the cross-examination of the complainant wherein he has categorically stated that "I could not get any evidence against accused regarding preparation of dacoity by the accused". In these circumstances, the learned counsel have further argued that according to section 8 referred to above the initial burden is on the prosecution to show that any article or thing which is capable of being used for or in connection with the commission of such offence or that the accused is apprehended in circumstances which lead to raise a reasonable suspicion that he has committed such offence than the presumption would be that the accused had committed such offence unless he can prove otherwise. In view of above provision, it is obvious that the second part relates to commission of an offence whereas in the present case admittedly it was not committed but only the accused were assembled for the purpose of committing dacoity or were making preparation for the same. Now it can be argued by the prosecution that because the weapons were recovered from the accused and they were part of unlawful assembly, therefore, the presumption would be against them. We are afraid we cannot subscribe to the said contention unless '' there be some evidence on record to suggest the said fact which is lacking in the present case. Reference may be made to the case of Sirajul Hague and others v. The State (1994 PCr.L.J. 685) wherein a Division Bench of this Court had accepted the appeals of the accused where there was no satisfactory evidence available on the record to prove that the accused either had prepared themselves or had been making preparation to commit the dacoity. In the same case it was also held that mere assembly of five or more armed persons at one c place did not give rise to any presumption that they had assembled there to commit dacoity. Same view was held by another Division Bench of this Court while dealing with the bail application in the case of Amir Ali Khan v. The State (1994 PCr.LJ 576). Same view was taken by a learned Single Judge of the Lahore High Court in the case of Muhammad Sohail v. The State (PLD 1994 Lahore 383).
13. As regards the provisions of burden of proof the learned counsel for appellants have placed reliance on the case of Mishal Khan v. The State (1983 PCr.LJ 1628) wherein also a Division Bench of this Court has held that under section 8 ibid the burden would initially lie on the prosecution and when once the prosecution discharges the burden the same would shift to the accused. Similarly in the case of Ghazi and 2 others v. The State PLJ 1978 Cr. Cases (Quetta) 557 a Division Bench of the Quetta High Court had also held that initial burden is on the prosecution despite the provision laying the burden upon the accused. It may also be observed that the recovery of the weapon in certain circumstances should be one that can inspire confidence and should not be shrouded with any doubt. In the present case as already pointed-out there is every possibility that these statements under section 154, Cr.P.0 allegedly prepared at the spot at the time the accused were apprehended, are doubtful ones as according to the complainant the names of absconders were disclosed to him at the office which obviously is at police station where he had reached more than one hour after the apprehension of the accused and, therefore, the statements under section 154, Cr.P.C. Are obviously doubtful. It may be observed that it is the provision of section 154, Cr.P.C. When under the proceedings or investigation of the case starts.
14. The learned counsel for appellants have pointed out that the statement of accused as required under section 342, Cr.P.C. Has not been recorded but the statements of accused which are mentioned as Exhs.8 to 13 in the judgment are their statements on oath under section 340(2), Cr.P.C. We have perused the original record also. The same does not contain any statement of accused under section 342, Cr.P.C. This is a material irregularity. Provisions of section 342, Cr.P.C.
15. Provides that such statement of the accused should be recorded wherein he shall put in the allegations against him and asked to explain the same. Subsection (4) specifically provides that no oath is to be administered to the accused under section 342, Cr.P.C. The statements of accused recorded on oath under section 340(2), Cr.P.C. Cannot be equated with the statements required to be recorded under section 342, Cr.P.C wherein the accused is given an opportunity by the Court by putting the allegations to him and asking for his explanation. Even on this score the trial stands vitiated.
16. Similarly, in the case against appellant Muhammad Rehan under Arms Ordinance (Criminal Appeal No,113 of 1994) it may be observed that his statement under section 340(2), Cr.P.C. Has been recorded which is on record but his statement under section 342, Cr.P.C. Has not been recorded.
17. The original record shows that statement of one Khawar Khan son of Riazual Hassan under section 342, Cr.P.C. Is placed on record which statement bears the signatures of Syed Khawar Arif not only at the foot of the statement but also at the foot of the Certificate which has to be given by the Judge himself.
18. ' All the above facts contribute to only one inference that not only the prosecution has not been able to establish he case against the appellants but also that the trial Judge is ignorant of the relevant mandatory provisions of law; and that he does not deserve to be retained in service.
19. With these observations, we have to allow these appeals, set aside the sentence and conviction awarded by the trial Court. The appellants shall be I released forthwith, if not required in any other case.