' Muhammad Sharif alias Kali son of Abdullah aged about 27 years, Muhammad Amin aged about 22 years and Muhammad Sharif son of Chiragh Din aged about 23 years were arrested on the 28th of July, 1997, and are in jail eversince awaiting their trial which has not yet commenced, in pursuance of a case registered against them vide first information Report No,196 of 1997, dated the 28th of July, 1997, under sections 399 and 402, P.P.C. At Police Station Sarai Mughal, Tehsil Pattoki, District Kasur, regarding an occurrence which took place on the 28th of July, 1997, at 8-15 p.m. Near the B.S. Link Bridge which is about 4 miles from Police Station Sarai Mughal of District Kasur where the first information report was lodged on the same day by Inspector Muhammad Anwar and the formal first information report was drawn under section 399, P.P.C. Read with section 402, P.P.C.
2. According to Inspector Muhammad Anwar he received secret information while on patrol duty that the petitioners alongwith some others were present near a bridge at a distance of about 4 miles from Police Station Sarai Mughal and had assembled there with an intention of committing dacoity. Accordingly, a raiding party was organized and a raid was conducted as a result of which Muhammad Sharif, Muhammad Amin and Muhammad Sharif petitioners were apprehended at the spot while some others managed to run away. A .32 bore revolver was recovered from Muhammad Sharif, a mauser was recovered from Muhammad Amin petitioner and a .7 mm carbine was recovered from Muhammad Sharif petitioner.
3. Section 399, P.P.C. Lays down that 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.
4. Section 402, P.P.C. Provides that 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 extent to seven years, and shall also be liable to fine.
5. In order to fall within the mischief of section 402, P.P.C., an accused person shall have to be a member of an assembly consisting of, at least, five persons. If the assembly is of less than five persons, it shall not fall within the purview of section 402, P.P.C. This is the first requirement. The second requirement is that the assembly of 5 or more persons should have assembled for a definite purpose, i,e,, committing dacoity. If the assembly of five or more persons is for any other purpose it will not fall within the purview of 'section 402, P.P.C. Both these ingredients have to be proved by the prosecution beyond all reasonable doubts.
' In this context learned counsel for the petitioner places reliance upon the case of Hameed and others v. The State reported in 1992 PCr.LJ 2030.
6. The mere assembly of five or more armed persons at one place at any given time will not give rise to any presumption that they have assembled to commit dacoity as was held by a Division Bench of the Karachi High Court in the case of Sirajul Haque and 2 others v. The State reported in 1994 PCr.LJ page 685.
' The same view was taken by this Court in the case of Muhammad Suhail v. The State reported in PLD 1994 Lah. 383, where it was held that intention simpliciter was not cognizable.
7. Section 399, P.P.C. Envisages preparation to commit dacoity. Preparation is a step beyond intention and has to be established through some overt act from the attending circumstances which are indicative of such intention as was held by the Sindh High Court in the case of Ali Nawaz and 2 others v. The State reported in PLD 1996 Kar.
146.
' The same view was taken by a Division Bench of this Court in the case of Shaffaqat Ali Mullan alias Juj v. The State reported in 1991 PCr.LJ page 2395 and Shujaat Ali alias Chan Shah v. The State reported in 1991 PCr.LJ 2277.
8. Where there is only an assembly of five or more persons but no other attending circumstances to indicate either the intention or the preparation for the commission of dacoity then the case against the accused persons would not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. And would, at best, be a matter of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. Which would entitle such accused persons to the grant of bail as held by a Division Bench of Sindh High Court in the case C of Amir Ali Khan v. The State reported in 1994 PCr.LJ 576.
9. Resultantly, the petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the trial Court.