MUHAMMAD MUNIR KHAN, J---This petition for leave to appeal is directed against the order dated 23-5-1995 of High Court of Sind, Karachi, whereby Bail Application of Abdul Zubair petitioner in case under section 399/402 P.P.C., registered at Police Station Landhi, Karachi East, vide F.I.R. No.59 of 1995 dated 14-3-1995, was dismissed. According to the prosecution, Mirza Abdul Majeed, S.H.O., Police Station Landhi received secret information that a gang of dacoits with the intention to commit dacoity was sitting in Taxi Car No. 1240 at Bus Stop Baber Market, Landhi, Karachi. He raided the vehicle and arrested the petitioner and his co-accused namely, Hidayatullah and Asif. He recovered loaded .30 bore revolver from the petitioner and T.T. Pistols from his co-accused in the presence of Muhammad Akbar and Muhammad Ashraf, Constables.
2. Learned counsel for the petitioner has argued that the petitioner has not committed robbery or dacoity and he has been arrested on account of suspicion so he is entitled to be released on bail.
Notice was issued to the Advocate-General, Sind for appearance atongwith Police files/papers but no one is present on his behalf.
3. We have considered the matter carefully. We find that a case under section 13 of the Arms Ordinance for the recovery of unlicensed .30 bore revolver has separately been registered against the petitioner. The petitioner and his co-accused had not committed robbery. Plain reading of sections 399 and 402, P.P.C., shows that for convicting the accused under these sections of the A P.
P.C. The number of the persons assembled for the purpose of committing dacoity shall not be less than five, but in the instant case, the number of the accused found in the Taxi Car was three. This being the position, the question whether the accused are guilty of offences punishable under section 399/402, P.P.C., requires further enquiry.
4. For all these reasons, the petition is converted into appeal and is allowed. The petitioner shall be released on furnishing bail bonds in the sum of Rs.50,000 with to sureties in the like amount to the satisfaction of the trial Court.