1. ' ABDUL RAHIM KAZI, J.--- By this common judgment we intend to dispose of these five appeals as same arise out of a common incident.
2. ' Briefly the facts are that on 2-9-1992 S.I.P. Bashir Ahmed, S.H.O. Phuleli Police Station, Hyderabad recorded an F.I.R. At the Matiari Police Station as Crime No,66 of 1992 to the effect that on previous night he had received instructions from 55 Brigade Headquarters to report at 22 Sindh Regiment at Matiari alongwith his police force and he taking with him A.S.I. Bazhat All Shah, A.S.I. Muhammad Arib, A.S.I. Ahmed Khan and other police force went to Matiari where he was briefed by one Major Butt that they had received spy information that five persons had collected in the forest who were all armed with the lethel weapons and were conspiring to commit dacoity. There was police force from other police stations as well. The entire police force and the Army personnel came to the Wardat and there they found five persons available in the lands near tubewell of Rasool Bux Siyal in the mango garden. The raiding party challenged the culprits of whom two persons taking advantage of the darkness and trees made good their escape while the three were arrested alongwith the weapons and ammunition. The said three persons gave their names as the present appellants while they also gave the names of two absconders as Qubran and Bashir alias Shaboo both Chandias by caste. According to the F.I.R. a S.N.G. Was recovered from appellant Muhammad Jaffar while klashnikovs were recovered from appellants Bakhshoo and All Ahmed. According to the F.I.R. The magazine and the bullets were also recovered from them. The apprehended accused were then brought to Matiari Police Station alongwith the weapons and ammunition recovered and the above F.I.R. Was registered. However, separate F.I.Rs, were also registered against each of the appellants under section 13-D, Arms Ordinance for the recovery of the alleged weapons which were said to be without any licence. These Fitts. Bear Nos.68, 67 and 69 of 1992 respectively. After completion of the usual investigation all the four accused were separately challaned before the Special Court (S.TA.), Hyderabad.
3. ' The charge was framed in each case to which the accused pleaded not guilty and claimed trial.
4. The prosecution in the main case examined complainant Bashir Ahmed (S.H.O. Phuleli Police Station) who also produced the F.I.R. The police also examined A.S.I. Bazhat Ali Shah of Special Team who acted as Mashir of recovery and arrest. The prosecution then examined Mukhtar H.C. Of Tando Allahyar Police Station who was also a member of the raiding party and lastly examined Khan Nawaz S.H.O. Matiari Police Station the Investigating Officer.
5. ' The statements of accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations. The accused examined themselves on oath and they also led defence evidence by examining Mehar Din and Sheedo. The trial Court after hearing the arguments of the Advocates was phased to convict the three appellants under section 399, P.P.C. In the main case and sentenced them to undergo R.I. For 10 years each and to pay fine of Rs,5,000 each or in default to undergo a further R.I. For six months each. Whereas under the three different cases under section 13-D, Arms Ordinance every accused convicted and sentenced to undergo R.I. For 5 years. Being aggrieved the appellants have preferred these 5 appeals.
6. ' Appeal No,53 of 1994 and Jail Appeal No,63 of 1994 are preferred by the three appellants challenging the judgment, conviction and sentence in the main case whereas the other three appeals have been filed by each appellant separately challenging their conviction and sentence under section 13-D, Arms Ordinance.
7. ' We have heard Mr. Qurban Ali Chohan, Advocate for the appellants in Criminal Appeal No,53 of 1994 and Criminal Appeals Nosi/131 of 1994 and 133 of 1994 while regarding the other two appeals we have gone through the paper book with the assistance of the learned AA.-G. And Advocate for the other appellants.
8. ' Mr. Chohan has argued that as regards the main case a plane reading of the F.I.R. Will show that at the time the accused were apprehended by the raiding party they had disclosed that they had assembled there with the mention to abduct some people for ransom but because of a very strict patrol by police and army personnel they failed in their designs. This by itself would not constitute an offence under section 399 or 402, P.P.C. Which reads as under:-- "399. Attempt to commit dacoity.--- 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 purpose 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. The perusal of the above provisions would show that the prosecution has to prove that the alleged five persons had collected at the given place duly armed with weapons with the intention to commit a dacoity. In the present case not a single witness has deposed to this effect. Complainant Bashir Ahmed in his deposition does not state if the accused had collected at the place of Wardat with the intention to commit dacoity. He however, confirms that he had got the F.I.R. Lodged which is correct and bears his signature. The F.I.R. Shows that the accused had stated to the raiding party that they had collected there with intention to commit abduction. The learned counsel has then referred to the charge. In the charge the present accused are alleged to have committed an offence punishable under section 399 read with section 402, P.P.C. There is no evidence on the record of any witness to the effect that he had heard the accused to be conspiring or planning to commit a dacoity. In such circumstances the prosecution has not been able to prove the charge against the appellants In the case of Khawar v. The State PLD 1995 Kar. 105 a Division Bench of this Court has held that mere assembly of five or more armed persons at one place does not give rise to any presumption that they had assembled there to commit dacoity. In the same case it has been held that where there is no evidence available on the record to suggest that accused had assembled at such place for commission of dacoity or were making any preparation therefore, then mere statement of a Police Officer would not be sufficient to pass the conviction.
10. ' It may further be observed that it is for the complainant to have shown that he had material evidence on the basis of which the F.I.R. Could be registered under sections 399 and 402, P.P.C. As discussed above, there being no assertion made in the F.I.R. That these appellants had assembled there for the purpose of or for preparation for commission of the dacoity, the very F.I.R. C under the given sections could not have been registered and therefore, the entire proceedings initiated on the basis of such F.I.R. Itself would fall down as a house of cards in case the F.I.R. Is struck down.
11. However, in view of the above discussion we are of the opinion that the prosecution has not been able to bring home the charge under section 399/402, P.P.C. Against the present appell2 as. The consequence is that the two appeals being Criminal Appeal No,53 of 1994 and Criminal Appeal No,J/63 of 1994 have to be accepted.
12. ' Taking up the appeal of appellant Muhammad Jaffar (Criminal Appeal No,J/133 of 1994) the learned counsel for the appellant has pointed out that the charge against the appellant is framed as under:-- "I, Hyder Bakhsh Shaikh, Judge Special Court (S.TA.) at Hyderabad, do hereby charge you; Muhammad Jaffar son of Mureed Khan Rind as follows:-- ' That on or about 2-9-1992 at about 5-30 a.m. Near the protective Bund near village Talib Taluka Matiari you were going armed with one K.K. Loaded with a magazine containing 30 bullets, and 2 other magazine containing 30 bullets in each and other 114 bullets in Thella, without licence in contravention of section 8 of Arms Ordinance and thereby committed an offence punishable under section 13-D, Arms Ordinance and within the cognizance of this Court.
13. ' An I hereby direct that you be tried by this Court on the abovesaid charge."
14. The above charge will show that he has been charged with going armed with klashnikov loaded with a magazine containing 30 bullets and two other magazines containing 30 bullets in each and other 114 bullets in a Thella. As against this the Mashirnama of recovery which has been produced in evidence shows that from this accused one S.M.G. Alongwith 3 loaded magazines and 114 bullets Were recovered. This is a material contradiction as the weapon alleged to have been recovered from the accused as shown in the charge is a different weapon. The learned counsel has also referred to us to the deposition of complainant Bashir Ahmed who while giving evidence in the case of appellant Muhammad Jaffer states that "in all he had got recovered one klashnikov, three magazines and 204 live bullets". At the later stage he states that "accused Jaffer present in Court is same, so also fire-arms lying in Court are same". This later piece of evidence obviously has a reference to the earlier portion cited above which would mean that it was the klashnikov which was in the Court and not the S.M.G. Allegedly recovered from this appellant as per the Mashirnama. Not only this but the word used by this witness is in plural which would mean that there were more than one weapon available in the Court whereas only one weapon has been recovered from the appellant. The witness is a literate person holding an important post of S.H.O. Of a police station. He is not a layman and not expected to make such material mistakes. In view of these discussions we find that even in case of appellant the charge does not stand proved.
15. ' The next case is that of appellant Bakhshoo (Criminal Appeal No,J/131 of 1994) we regret to state that in this case also we have no alternate but to give benefit to the accused just because of haphazard manner in which the Mashir A.S.I. Bazahat Ali yet another responsible officer has given evidence. In the examination-in-chief this witness states "from the possession of accused (Bakhshoo) one S.M.G. Loaded with a magazine full of bullets, 2 others magazines full of bullets were also recovered which were lying in a cloth bag and also 110 bullets lying in said Thella. This evidence of this A.S.I. Of police totally demolishes the case of the prosecution as according to Mashirnama of recovery and F.I.R. a klashnikov was recovered from this appellant Bakhshoo.
16. ' In view of the above discussion we are not inclined to accept the evidence of these two witnesses in respect of all the appellants. The learned counsel for the appellant has further pointed out that in this case obviously these documents are prepared at the police station and not at the place of Wardat and there is some manipulation in the cases. He has further argued that the case cannot be said to be beyond any doubt. In this respect he has placed reliance on the above-cited case of Khawar v. The State and also the case of Muhammad Aslam v. The State 1995 PCr.LJ 293. A reference has also been made to a Single Bench case of this Court being case of Muhammad Amin v. The State 1995 PCr.LJ 1012. As against this the learned AA.-G. Has opposed these appeals and has argued that under section 8 of the Suppression of Terrorist Activities (Special Courts) Act, hereinafter referred to as the Act. The burden is on accused to prove his innocence in case prosecution shows the recoveries of the weapons from him. The provisions of section 8 of the Act reads as under:-- "8. Burden of proof.--- Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence, unless he can prove that he had not in fact committed the offence."
17. It may be observed that the prosecution does not stand absolve from proving the recovery against accused just by mere making such recital in the F.I.R. Or Mashirnamas. The above provisions of section 8 would show that initially the burden lies on the prosecution to show that such incriminating articles were found in possession of the accused and it is only when such prima facie evidence is-brought on record that the burden would shift to the accused. Reliance may be placed to the above-referred case of Muhammad Aslam v. The State.
18. ' Lastly we may also observe that the learned Special Judge while passing the property order in the judgment of the main case has ordered "Three (3) KKs, nine (9) magazines and 704 live bullets shall be confiscated to the State and shall be sent to the District Armoury according to law after the period of appeal is over in this case."
19. ' The above order clearly shows that there was no S.M.G. Produced in the Court. This itself goes to belie the case of the prosecution. Accordingly we have no other option but to accept these appeals although we observe with great regret that because of either incompetency or for any collateral reasons the two Police Officers whose names are mentioned above have rendered the case doubtful. We, therefore, accept these five appeals, set aside conviction and sentence. The appellants are acquitted. They shall be set at liberty if not required in any other case. Let a copy of the judgment be sent to the Home Secretary, Government of Sindh.