P L D 1994 Lahore 383 (PLP)

This judgment will dispose of the application under section 561‑A, Cr.P.C. moved by Muhammad Sohail son of Ch. Nur Elahi, Abdur Rauf son of Raja Fazal Hussain and Muhammad Tariq son of Dr. Muhammad Fazil for quashment of case F.I.R. No. 274/91, dated 8‑8‑1991 under sections 399/400 and 402, P.P.C., Police Station North Cantt. Lahore, pending in the Court of Mr. Muhammad Masud, M.S. 30, Lahore.

2. Briefly stated, the prosecution story is that the petitioners alongwith five others were allegedly making preparation in a graveyard near Dry port for committing dacoity. On receipt of an intimation the police conducted a raid on them and they were arrested. Fire‑arms carried by them were recovered. They were also booked under the Arms Ordinance. After investigation they were challaned under the Arms Ordinance and under sections 399/400 and 402, P.P.C.

3. Muhammad Ilyas son of Nazir Hussain, the only public witness of the recovery of fire‑arms, did not support the prosecution in cases under the Arms Ordinance against Muhammad Sohail and Abdur Rauf petitioners, who were consequently acquitted of the charge under section 13 of the Arms Ordinance, it is added.

4. Challan of case F.I.R. No. 274/91 under sections 399/400 and 402, P.P.C. was submitted to the trial Courts on 19‑1'0‑1991. Charge‑sheet was framed on 23‑6‑1992. The case witnessed several adjournments but during this period, statement, of not a single witness was recorded. Hence, the quashment application.

5. Muhammad Tariq son of Dr. Muhammad Fazil has petitioned through jail seeking the same relief. The two petitions will be disposed of together.

6. The prosecution case is that a raid was conducted on the petitioners on receipt of an information that they intended to loot a van carrying cash from a bank. They were apprehended alongwith rifles, revolvers and pistols etc.

7. The petitioners were arrested from the graveyard on the allegation that they were sitting there with the intention to commit dacoity. It is well settled that law does not make the person entertaining such intention guilty of an offence unless he takes some positive steps towards the commission of the crime because there is a possibility of change of mind at a subsequent stage. The mere sitting of the petitioners in the graveyard would not amount to an attempt to commit dacoity. It is not understandable from what material the police came to the conclusion that the petitioners had assembled in the graveyard to commit dacoity. There is a serious doubt about the date of apprehension of the petitioners. Learned counsel appearing on their behalf has referred to the certain press‑reports carrying news about the press‑conference held by the police officers about the arrest of the petitioners. These reports suggest that the petitioners were already in police custody when the present case against them was registered.

8. In the above circumstances, I do not find any probability or chance of the conviction of the petitioners. Accordingly, I accept the petitions and quash the case F.I.R. No. 274 of 1991 dated 8‑8‑1991 under sections 399/400 and 402, P.P.C., Police Station North Cantt., Lahore against the petitioners. In consequence, all the three petitioners are acquitted. Muhammad Tariq son of Dr. Muhammad Fazal shall be set at liberty provided he is not required to be detained in any other case. N.H.Q./M‑1526/L Proceedings quashed.