JUDGMENT SYED ABDUL RAHIM KHAN, J.- This appeal is directed against the judgment of the judge special Court (Suppression of Terrorist Activities) Hyderabad in case No. 65 of 62 convicting the present three appellants u/S. 366 PPC add sentencing them to suffer K.I. For 10 years each and to pay a tine of Rs. 10,000/- each and in default of payment of fine to suffer further imprisonment of one year. Briefly the facts are that one Haji Noor Ali Mari. DSP CIA Centre, Hyderabad registered an PIR with Chamber Police Station u/S. 366 PPC etc. Being crime No. 64 of 91. The allegations according to PIR are that on the evening of 7.12.1991 the complainant had received spy information to the effect that the dacoits have collected in the lands of Haji Ghulam Hussan Khokhar and they were likely to commit dacoity. On receipt of such information the complainant collected police force from Motiari and Chamber police stations and also summoned the reserve police force in addition to CIA police and went to raid at the vardaal where they reached at 6.30. In the morning. According to complainant the dacoits started firing at the police party to which the police party also retaliated and an encounter took place for about half an hour and during the encounter the dacoits A/.Cem Thebo. Sharif Kallo. Amanullah Lund and Janoo Leghari ran away. However the police rounded-up and arrested the present three appellants and co-accused Hakim Ali and Allah Bachayo and recovered the weapons as shown from them along with the ammunitions and after completing usual investigation sent up the case for trial. Charge was framed against all the five accused under section 369 PPC to which they pleaded not guilty and claimed trial. The prosecution examined the complainant DSP Noor Ali Mari, who has produced the mushirnama of airest and recovery as Ex. 13 and also the FIR and Rozanmacha of .'IA. The prosecution then examined SIP Allah Bachayo, SIP Khan Nawaz and Abdul Razzaq the then DSP Chamber. Thereafter the statement of accused was recorded under section 342 Cr.P.C, wherein they denied the allegations made against them and claimed that they have been falsely implicated in the present case. They also asserted that they were never arrested in any encounter as alleged but were picked-up from their village along with their licensed weapons.
The accused did not examine themselves on oath nor they examined any defence witness. The learned Trial Court thereafter passed the above said judgment whereby co-accused Hakim Ali and Allah Bachayo were acquitted with the observation that they were falsely implicated in the case and that the \weapons allegedly recovered from them are the licensed weapons of their Zamindar Ghulam Hussan Khokhar. The present appellant was convicted and sentenced as above. Being aggrieved the appellants has preferred this appeal.
2. We have heard Mr. Rasool Bux Unar, counsel 'for the Appellant while none is present for the State.
3. The learned counsel has challenged the judgment on a number of grounds. The very lust contention of the learned counsel is that the prosecution has failed to-contently with the mandatory requirements of section 103. Cr.P.C, inasmuch as no private person has been associated in the case to Act as mashir or witness. He has referred to the deposition of the complainant who has admitted that the police parts had reached the place, where the decoits were said to have been sitting, at 6.30 in (he morning which in the month of December is the time when IAJR Prayer is offered and obviously the people in the village would be awoke at that time.
The deposition of the complainant also shows that the police party had reached that place in police vehicles and the place where they had stopped was surrounded by the house of the focal people, lie has also conceded in his cross-examination that the morning had already set in at. The time when the encounter started. Thus it is quite obvious that in the morning time and in face of encounter for half an hour where both parties started firing each other, the local people must be watching the same but yet none pf them has been associated as a witness of mashir. The complainant does not state if he had approached any of the private person to act as such mashir or witness, In these circumstances we have nohesitation in holding that the provisions of 103, Cr.P.C, have not been complied with and this itself alone would be sufficient ground to set aside the judgment and conviction.
4. The other ground urged In the learned counsel is that admittedly the encounter has taken place for about half an hour and according to the prosecution case there were at least 0 dacoits at whom the police was firing but in spite of firing hundreds of rounds they have not been able to cause even a slight injury to any of the culprits. This speaks of the efficiency of our police force. The counsel has also pointed out that there is no document produced on record to show if any empty was recovered from the place of incident What to talk of empty, even the mushirnama of vardaal has not been produced in the case as obviously the same would not have been prepared by the concerned officer. With regrets we stale that the Trial Court in his judgment has observed that the complainant in his evidence has produced mushirnama of vardaal-as fix. 13 whereas that mushirnama is mushirnama of arrest and recovery and is not the mushirnama of vardaal. The trial Court while writing the above judgment dr dealing with the case ought to have exercised in caution. The other ground urged by the learned counsel is that even on the face of it section 399 PPC is not made out as according to section 399 PPC the prosecution ought to have proved that the culprits had collected there with the intention to commit dacoity, In the first instance it is settled law that mere assembly of five or more armed persons at the place would not give rise to the inference that their intention was to commit dacoity but some over act or some attending circumstances ought to have been proved to support such inference. Teamed counsel has further argued that in the present case the Trial Court has itself held that co-accused Hakim Ali and Allah Bachayo were falsely implicated in the present case leaving only 3 accused and thus neither the dacoity nor any unlawful assembly can be made out for collection of3 persons. The minimum number of required is 5.
5. Learned counsel has also pointed out certain contradiction from the evidence of the complainant. However, lastly the learned counsel has argued that admittedly the information was received by the complainant about the presence of the dacoits on the evening of 7.12.1991 while he reached that place on the morning of 8.12.1991. It can hardly be assumed that the culprits how had assembled in the evening with the intention to commit dacoity would sit away whole night without commission of such offence and awaited the police party in the morning to come there so that they may have encounter with them, this is highly unbelievable.
6. In the light of the above discussion we are of the view that not only the> prosecution has failed to prove the case against the appellants beyond any reasonable doubt but even the judgment is passed on inferences and surmises. Accordingly, we accept this appeal, set aside the judgment of the-Trial Court and the conviction and sentence awarded to the appellant. The appellants shall stand acquitted. The appellants are in custody and shall be released foth with if not required in any other case.