P L D 2010 Quetta 58 (PLP)

JAMAL KHAN MANDOKHAIL, J.

These appeals are arising out of impugned judgment dated 6-8-2009 passed by Additional Sessions Judge-VI, Quetta, whereby the appellants were convicted under sections 399, 400 and 401, P.P.C. and sentenced to suffer R.I for seven years each with fine of Rs.10,000 each, in default whereof to further undergo S.I. for six months each. Briefly stated facts of the case are that an F.I.R. No.20 of 2009 lodged with Police Station Kuchlak under sections 399/400/401, P.P.C., contending therein that on spy information, a raid was conducted at graveyard wherefrom the appellants were arrested and on search TT Pistols .30 bore along with cartridges were recovered from their possession. After usual investigation, challan of the case was submitted in Court of Additional Sessions Judge-VI Quetta for trial. The prosecution in support of its case, produced five witnesses, in rebuttal, the appellants were examined under section 342, Cr.PC. On conclusion of case, the learned trial Court has convicted and sentenced the appellants as mentioned hereinabove. Learned counsel for appellants submitted that trial Court has not properly appreciated facts and circumstances of the case. Prosecution has failed to prove ingredients of sections 399/400 and 401, PPC. The witnesses have not been able to prove case of prosecution, but still conviction awarded to appellants is noting, but abuse of process of law, as such, the impugned order is liable to be set-aside. On the other hand learned P.G has vehemently opposed the appeals and has stated that the prosecution witnesses have successfully proved case against appellants. The witnesses remained firm to their depositions and have not been shaken despite lengthy cross-examination. The judgment impugned is just and proper, as such the same is liable to be maintained. I have heard learned counsel for the parties and have perused the record. Before going to discus merits of the case, let in the first instance go through the section 399, P.P.C. which is reproduced herein below:

Making preparation to commit dacoity.-- Whoever makes any preparation for committing dacoity, shall be punished, with imprisonment for life or with rigorous imprisonment for a term which may extend, to ten years, and shall also be liable to fine. Bare perusal of said section reveals that to constitute an offence under section 399, P.P.C. intention and preparation is the basic ingredients, the basis of which one could be charged. On perusal of statements of witnesses, none of them has stated a single word showing their personal knowledge about the intention of appellants or preparation for commission of above said offence. The evidence also indicates that no overt act has been shown on the part of appellants so as to prove their intention. The prosecution witnesses have simply relied upon the spy information. It is important to note here that information simpliciter does not constitute any offence unless and until necessary ingredients of above section stand proved, as has been held in a case titled Ali Nawaz and others v. The State reported in PLD 96 Kar. 146, relevant portion is reproduced herein below:

S. 399

Preparation to commit dacoity

Intention, an essential ingredient

Proof, what constitutes-Mere assembly of five or more armed persons at the place would not show their intention to commit dacoity unless some overt act or some attending circumstances are proved to support such intention. Learned counsel for appellants has also relied upon the judgments reported in 2006 PCr.J 1795; 2007 MLD 1760 and 2007 YLR

646. After going through the evidence and material on record, I have considered the case on the touchstone of above said case laws, as well as definition of section 399, the prosecution has miserably failed to prove the intention and knowledge of appellants for committing the alleged offence. As far as the contention of learned P.G that the appellants were found present in graveyard in mid-night having un-licensed arm is sufficient proof of their intention, is concerned, I am not in agreement with his contention as law does not restrict movement of any body nor any time has been prescribed for such movement. It is a fact that the appellants were found in possession of illegal arm for which they have already been convicted, therefore, their attempt to escape from the place, might be the result of having illegal arm in their possession and to save from arrest. In all probabilities the prosecution story is highly doubtful, therefore, any doubt arising out of the prosecution story, benefit of the same should have been extended to the appellants which the trial court has failed to do so, thus, the act of trial court amounts to mis-exercise of jurisdiction. In view of what has been discussed herein above, I am inclined to accept the appeals, set aside the impugned judgment dated 6-8-2009, resultantly the appellants are acquitted of the charge, they be released forthwith if not required in any other case. H.B.T./21/Q Appeals accepted.