1. ' This appeal is directed against the judgment of the Judge Special Court-I (Suppression of Terrorist Activities) Hyderabad in Case No,65 of 1992 convicting the present three appellants under section 399, P.P.C. And sentencing them to suffer R.I. For 10 years each and to pay a fine 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 All Mari, D.S.P., C.IA. Centre, Hyderabad registered an F.I.R. With Chambur Police Station under section 399, P.P.C. Etc. Being Crime No,64 of 1991. The allegations according to F.I.R. Are that on the evening of 7-12-1991 the complainant had received spy information to the effect that the decoits have collected in the lands of Haji Ghulam Hussain Khokhar and they were likely to commit decoity. On receipt of such information the complainant collected police force from Matiari and Chambur Police Stations and also summoned the reserve police force in addition to CIA. Police and went to raid at the Vardat where they reached at 6-30 in the morning. According to complainant the decoits 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 decoits Azeem Thebo, Sharif Kafro, Amanullah Lund and Janoo Leghari ran away. However, the police rounded-up and arrested the present three appellants and co-accused Hakim All and Allah Bachayo and recovered the weapons as shown from them alongwith the ammunitions and after completing usual investigation sent up the case for trial. Charge was framed against all the five accused under section 399, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution examined the complainant D.S.P. Noor All Mari, who has produced the Mashirnama of arrest and recovery as Exh.13 and also the F.I.R. And Roznamcha of C.IA.. The prosecution then examined SIP Allah Bachayo, S.I.P. Khan Nawaz and Abdul Razzaq the then D.S.P. Chambur. 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 alongwith their licensed weapons. The accused did not examine themselves on oath nor they examined any defence witness. The learned trial Court thereafter passed the abovesaid 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 Hussain Khokhar. The present appellant was convicted and sentenced as above. Being aggrieved the appellants have 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 first contention of the learned counsel is that the prosecution has failed to comply 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 party had reached the place, where the decoits were said to have been sitting, at 6- 30 in the morning which in the month of December is the time when Fajar prayer is offered and obviously the people in the village would be awake 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 the vehicle was surrounded by the houses of the local people. He 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 at each other, the local people must be watching the same but yet none of them has been associated as a witness or 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 no hesitation in holding that the provisions of 103, Cr.P,C. Have not been complied with and this itself along would be sufficient ground to set aside the judgment and conviction.
4. ' The other ground urged by the learned counsel is that admittedly the encounter had taken place for about half an hour and according to the prosecution case there were at least 9 decoits at whom the police party 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.
5. 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 Mashirnama of Vardat has not been produced in the case as obviously the same would not have been prepared by the concerned officer. With regrets we state that the trial Court in his judgment has observed that the complainant in his evidence has produced Mashirnama of Vardat as Exh.13 whereas that Mashirnama is Mashirnama of arrest and recovery and is not the Mashirnama of Vardat. The trial Court while writing the above judgment or de.Iling with the case ought to have been exercised due caution. The other ground urged by the learned counsel is that even on the face of it section 399, P.P.C. Is not made out as according to section 399, P.P.C. The prosecution ought to have proved that the culprits had collected there with the intention to commit decoity. 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 decoity but some overt act or some attending circumstances ought to have been proved to support such inference. Learned counsel has further argued that in the present case the trial Court has itself held that co-accused Hakim All and Allah llachayo were falsely implicated in the present case leaving only 3 accused and thus neither the decoity nor any unlawful assembly can be made out for collection of 3 D persons. The minimum required is 5.
6. ' Learned counsel has also pointed out certain contradiction from the evidence of the complainant.
7. However lastly the learned counsel has argued that admittedly the information was received by the complainant about the presence of the decoits 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 who had assembled in the evening with the intention to commit decoity 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.
8. 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 forthwith if not required in any other case.