' RASHEED AHMED RAZVI, J.---This petition under section 561-A, Cr.P.C., has been filed by an accused who is facing trial before the Special Court No,1 (Suppression of Terrorist Activities) at Karachi alongwith other four accused for offence allegedly committed under section 399/402, P.P.C.
Petitioner's application under section 249-A, Cr.P.C. Was rejected by the Special Court vide order, dated 28-12-1996 on the ground that it was a premature stage and secondly, no witness was examined till then.
2. On 16-8-1996 at 7-30 p.m. An F.I.R., was lodged by the S.H.O. Police Station Sher Shah, Karachi alleging that he alongwith other police party was on patrol duty on the same day when he received spy information that some persons duly armed near Paracha Kabrastan were making programme to commit some offence; that he police party after receiving such information raided the place of incident and arrested four persons including applicant; that fifth accused namely Ghulam Rasool absconded from the place of alleged incident; that two motorcycles alongwith revolvers, pistols, mouzer were recovered from these accused persons. On 29-8-1996 final charge- sheet was submitted before the Trial Court wherein the same facts as of the F.I.R., were alleged.
Even in this chargesheet/challan it was mentioned that after investigating and recording statements of all witnesses, it was found that the accused persons had gathered at Paracha Kabrastan with the intention to commit "some crime".
3. We have heard Mr. Muhammad Hanif Kashmiri, Advocate for the applicant and Mr. Shaikh Azizur Rehman, Advocate for the State. It was strenuously argued by Mr. Muhammad Hanif Kashmiri that no ingredients of offences under section 399/402, P.P.C., can be spelled out from the contents of F.I.R., charge-sheet and 161, Cr.P.C. Statements of the prosecution witnesses. He has further argued that the allegation on the part of prosecution that the applicant alongwith other persons had gathered at some place duly armed to commit some offence is not sufficient to form basis of conviction for the alleged offences. According to the learned counsel for the applicant, there is no possibility that the Trial against the applicant may culminate in the conviction and that the continuation of proceedings before the Trial Court amounts to abuse of process of law. He has relied upon the cases Jamaluddin and another v. The State 1995 M LD 1779 and the case of Muhammad Jaffar and another v. The State 1995 PCr.LJ 2052. Mr. Shaikh Azizur Rehman appearing on behalf of the State has conceded to the fact that the ingredients of the offences as specified under sections 399 and 402, P.P.C. Are absent in the prosecution's case and that there is no likelihood that the trial would end in conviction of the accused persons. He has supported this quashment application.
4. In Jamaluddin's case, a learned Single Judge of this Court quashed the proceedings pending against the applicant under section 399/402, P.P.C., on the ground inter alia, that the offences under section 399/402, P.P.C. Would be attracted only where the number of alleged offenders is five or more and that the offenders have made some preparation for committing dacoity and that the assembly should be for the purpose of committing dacoity. In the case of Muhammad Jaffar (supra) a Division Bench of this Court following the case of Khawar and others v. The State PLD 1995 Kar. 105 set aside the conviction order passed by a Special Court (S.T.A. Hyderabad) on the ground inter alia, that there was no evidence on the record of any witness to the effect that he had heard the accused to be conspiring or planning to commit dacoity. It was further held that gathering of five or more armed persons at one place does not give rise to any suspicion that they had assembled to commit dacoity. In the case of Khawar and others PLD 1995 Kar. 105 another Division Bench of this Court set aside the sentence passed by the Special Court (Suppression of Terrorist Activities) in the offence under section 399/402, P.P.C., with the following observations:-- "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 unless he can prove otherwise. In view of the 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 that the said fact which is lacking in the present case. Reference may be made to the case of Sirajul Haque and others v. The State 1994 PCr.LJ 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 place did not give rise to any presumption that they 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.IJ 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 Lah.
383." (Underlining is ours)
5. We have considered the arguments of both the counsel. Present applicant was arrested on 16th August, 1996 alongwith other three accused. Besides the present case, another case under section 13-D of Arms Ordinance, 1965, was registered for the weapon shown to have been recovered from the possession of the present applicant. We are told that till this date, charge has not been framed by the learned Trial Court and, therefore, no evidence was recorded despite the fact that more than nine months have passed. It is pertinent to note that section 511 of the Pakistan Penal Code has made attempts to commit certain offences, as mentioned in that section, punishable with imprisonment not extending to one and a half of the longest term of imprisonment provided for that offence or with such fine/Daman. However, offences under sections 399/402 are exceptions as under these two provisions of law even preparation for commission of dacoity (section 399) and assembly of five or more persons for the purpose of committing dacoity (section 402) have been made substantive offences punishable with imprisonment extended to ten years and to five years respectively alongwith fine. The stage of preparation has been included in these two provisions as the term dacoity' defined in section 391, P.P.C., includes an attempt to commit a robbery by five or more persons and aiding such commission or attempt, to be an offence of dacoity. The stages from the conception to consummation of crime, particularly in relation to the distinction between preparation and attempt was elaborately discussed by the Full Bench of Honourable Supreme Court in the case of Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192.
We cannot do better than what Justice Zafar Hussain Mirza (as his Lordship then was) has observed in the said judgment, relevant portion of the same is as follows:--- "....The classic analysis of the course of conduct of a culprit from the stage of conception to consummation of crime has laid down four distinct stages, namely, (i) intention; (ii) preparation;
(iii) attempt; and (iv) completed act. As observed by Sir H.S. Gour, in his commentary on the Penal Law of India, the first of the aforesaid,four stages, the Criminal Codes of all countries exempt from punishment. The Penal Code of Pakistan punishes the second stage of certain offences, by constituting them separate and distinct offences. ... The case in which mere preparation to commit an offence has not been made punishable present the problem to determine whether the acts or omissions committed by the culprit constitute merely preparation or amount to attempt. Often times in such cases the transition between what is preparation and an attempt is so gradual as to be almost imperceptible. The preparation to commit an offence consists in devising or arranging the means or measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime "
(Underlining is ours)
6. In the present case, except the bare allegations in the F.I.R., and challan that the applicant alongwith other four accused gathered. At a certain place to commit "some offence", there is no other material with the prosecution to sustain the allegation that they were there with the preparation to commit the offence of dacoity. Except arms, as mentioned above, nothing else was recovered from the present applicant or from other co-accused, which may suggest that they have gathered with the preparation to commit the offence of dacoity. Mere gathering of five or more armed persons does not necessarily lead to the conclusion that they have gathered with the intention and preparation to commit dacoity. Equally, it can be presumed that they may have gathered there to commit murder or to commit other acts of terrorism by making indiscriminate firing in public places. There are other offences which can be attributed to these persons. It would not be just to hold that in all cases of recovery of arms, it is to be presumed that the accused were likely to commit offence of dacoity. In our considered view, there must be something more than the recovery of arms through which it can be alleged that the persons arrested and from whom recovery of arms were effected have gathered with the preparation to commit dacoity. All such allegations and material are absent in the prosecution case.
7. Applicant has prayed for quashment of the proceedings pending before the learned Trial Court.
In our view, rejection of his plea by the Trial Court on the grounds that it was a premature stage and no witness was examined were not proper as no stage has been defined as to when an application under section 249-A, Cr.P.C. Or an application under section 265-K., Cr.P.C. Is to be filed.
It can be filed at any stage even prior to framing of charge. The Trial Courts are not required to wait till recording of prosecution evidence. What they are required to see is whether the accused is likely to be convicted or whether the charge is baseless. Now, we are left with the question what order is to be passed in such circumstances. In the case of Asif Ali Zardari v. The State and others 1992 PCr.LJ 58 a Division Bench of this Court comprising of Mamoon Kazi and Qaiser Ahmad Hamidi, JJ., quashed the proceedings pending before the Special Judge (Offences in respect of Banks) Sindh.
We would like to point out here that section 10 of the Special Court (Offences in respect of. Banks)
Ordinance, 1984 is para materia to section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. It was held in that reported case that the powers of High Court to quash judicial proceedings in order to prevent harassment of an accused by invoking provision of section 561-A, Cr.P.C. Are unfettered. It was further held that if the Court comes to the conclusion that continuance of such proceedings against the accused would defeat rather than, secure the ends of justice or that no result in furtherance of justice would come the proceedings can no doubt be quashed. (For further reference please see Muhammad Rashid v. Mst. Niazan Bibi and two others (1972 SCM R 387), and Mian Munir Ahmad v. The State 1985 SCM R 257.
8. As a result of the above discussion, we are of the considered view that the charge against the present applicant is baseless and there is no likelihood that the trial against him will culminate in conviction. We are of further view that continuation of the proceedings against applicant, if not quashed, would amount to abuse of process of law. Accordingly, this petition is accepted and the proceedings pending before the learned Trial Court are quashed in respect of the present applicant.