1. Learned counsel for the applicant has contended that the applicant Muhammad Nadeem is facing trial before the Special Judge (STA) Court No.1, Karachi in a case registered again9t him by S.H.O., Police Station Baldia Town; Karachi, through F. I. R. No. 163 of 1995.
2. The brief facts of the prosecution case against the applicant are that on 27-7-1995, S.H.O. Raja Amjad Hussain alongwith his staff, on receiving spy information arrested the applicant alongwith the co-accused when they were found riding in a Mazada Pick-up. On search a dagger was recovered from the possession of the applicant while two pistols and a dagger were found in possession of the three co-accused respectively. The applicant alongwith .Co-accused was challaned to stand the trial for an offence under sections 399, 402 and 411, P.P.C., in addition to a separate case under section 13-D of Arms Ordinance. The learned counsel for the applicant has informed that the applicant has already been acquitted, in the case registered against him under section' 13-D of the Arms Ordinance on the allegation of being in possession of an unlicensed dagger. The learned A.A.-G. Has, however, opposed the grant of bail to the applicant holding that the offence falls in the schedule to the Suppression of Terrorists Activities Act. We find after hearing the arguments of the learned counsel as well as perusing the record that the police had failed to collect any evidence against the applicant except that the applicant alongwith the co-accused was found in possession ofa pick-up, which did not belong to the applicant. On enquiry from the learned A.A.-G. As to whether anybody has claimed the pick-up to- be his property or whether there was any other case in respect of robbery or dacoity of the pick up, the learned A.A.G has 'replied that he is unable to state whether any case of theft or robbery of the pick up is registered.
3. Under these circumstances, there is doubt whether section 411 will apply. As regards the offence under sections 399 and 402, there are many cases decided by this Court, in which it has been held that mere assembling of 4 or 5 persons duly armed does not constitute an offence punishable under sections 399 and 402, P.P.C. In itself. One of such cases is 1994 PCr:LJ. 576. As a result, we consider that the applicant Muhammad Nadeem is entitled to be released on bail. We, therefore, allow this application and grant bail to the applicant on his furnishing one surety in the sum of Rs.100,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the trial Court.