2007 PLP 1760 (MLD)

MRS. QAISER IQBAL, J.

By this common judgment I intend to dispose of the above two criminal appeals as they involved common question of facts and law and are directed against the judgment both, dated 27-9-2006 passed by VII Additional Sessions Judge, .Karachi South convicting the appellants under sections 399/402, P.P.C. in Crime No.54 of 2003 of Police Station ACLC City, Karachi, whereby they were sentenced to undergo Rigorous Imprisonment for 10 years each ,under section 399, P.P.C. and Rigorous Imprisonment for 7 years each under-section 402, P.P.C. and to pay a fine of Rs.5,00,000 each, in case of default or non-payment of fine to undergo 6 months more imprisonment.-The appellants had filed criminal appeals against the impugned judgment prayed that the punishment awarded to them be set aside. The brief facts leading to the case are that the appellants Abdul Ghafoor and Muhammad Ayub along with co-accused Attaulalh alias Kamran were connected in the commission of the crime on the report under section 154, Cr.P.C. of S.-I. Muhammad Ishaque Lashari that on 12-5-2003 he along with the police 'party was patrolling in the area, received spy information about the presence of culprits in a park situated near Boat Basin Chowrangi duly armed with deadly weapons, .making preparation to commit dacoity. On receipt of above information, police party reached at the pointed place found 6 persons were sitting there, they were busy in conversation. After seeing the police party two of them fled away from the scene of occurrence while the appellants along with co-accused Attaullah alias Kamran were arrested on the spot. On personal search, TT pistols with live bullets were recovered from the possession of the appellant Muhammad Ayub-and co-accused. Attaullah. Police party also .secured motorcycles bearing No. KCC-1497 and LEARNED-8947 {sic) from the place of occurrence, brought the arrested appellants to the police station, on the basis of the report under section 154, Cr.P.C. cases were registered at Police Station Shershah and Gulshan-e-Iqbal, Karachi. After the registration of F.I.R., investigation was conducted by A.S.-I.. Mushtaq Ahmed of ACLC, Sharifabad. The appellants were interrogated, it transpired that motorcycles were stolen property, case against the appellants, co-accused Attaullah alias Kamran a absconding accused Jawaid Hussain and Laeeq Ahmed were registered. Charge against the appellants under sections 399/402, P.P.C. was framed and read over to them on 2-3-2005 (Exh.4), they pleaded not guilty. Prosecution in support of the case examined P.W.1. S.-I. Muhammad Ishaque Lashari (Exh.10), P.W.2 H.C. Mukhtar Ahmed (Exh.11), P. W.3 S.-I. Mushtaq Ahmed (Exh.12), closed the side to lead evidence. Statements of the appellants under section 342, Cr.P.C. were recorded, they denied to have committed the charged offence, pleaded innocence. The appellants were neither examined on oath under section 340(2), Cr.P.C. nor any defence version was produced. The learned trial Judge has settled the following points for determination: -- (I) Whether on 12-5-2003 at about 0105 hours the accused persons along with absconding accused made an unlawful assembly and gathered in a park, situated near Boat Basin Chowrangi, Karachi duly armed with deadly weapons, planning/preparing to commit dacoity'? (II) Whether the stolen Motorcycles bearing No.KCC-1497 and LEARNED-8947 (sic) have been recovered from the possession of accused persons, which intended to be used in subsequent crime to collaborate the. intention of the accused persons? (III) What offence, if any, the accused have committed? They trial Court finding the appellants guilty of the above offences, convicted them under sections 399/402, P.P.C. The appellants were allowed benefit of section 382-B, Cr. P. C. I have heard the arguments of learned counsel for the appellants as well as the State counsel. It is primarily contended by the learned counsel for the appellants that for determination of the points raised, warranting attraction of sections 399 and 402, P.P.C., the appellants were simply involved in forming an unlawful assembly. A plain reading of sections 399 and 402, P.P.C. shows that for the purpose of committing or preparation to commit dacoity, the Investigating Officer was required to conceive intention of the parties unlawfully assembled. It would be necessary for the prosecution to establish the allegations contained in F.I.R. or the offence to substantiate their contention in this respect. To adjudge the controversy I will refer to the evidence of P.W.1 S.-I. Muhammad Ishaque Lashari, the complainant of the case, who was on mobile duty along with A.S.-I. Mushtaq Ahmed, H.C. Mushtaq Ali and P.Cs., Iqbal Raja Rafaqat and Saleem reached at Teen Talwar, Clifton, received spy information that five persons were planning to commit dacoity near the park of Boat Basin, found that six persons were present, they were encircled, the appellants along with co-accused Attaullah were arrested on the spot and from their possession TT pistols and live bullets along with motorcycles were recovered. In the cross-examination, he has candidly admitted that when 'the accused were raided they were found standing near the exit gate of the park along with the motorcycles. After completing all the formalities at Police Station Sharifabad they reached at the place of occurrence within half an hour in official mobile. It is further admitted that the weapons recovered from the possession of the appellants were without number, which were separately sealed at the spot. P.W. H.C. Mukhtar Ali suspended from service and confined in Landhi Jail had appeared as witness, he had not mentioned the names of the members of the police party left from ACLC Sharifabad on the fateful day of raiding and unlawful assembly of the culprits bearing five per spy information. In his cross-examination he had failed to give the registration number of the police mobile, deposed in cross-examination that recovered weapons were sealed at police station as the sealing material was not available with the place of recovery. He further went to say that the spy information was not received at Teen Talwar, Clifton. He had denied the suggestion that appellant Abdul Ghafoor was already in custody when the case was registered and was arrested from the Court of the Civil Judge Sajawal, District Thatta, such entry was made at Police Station Sajawal. P.W.2. S.-I. Mushtaq Ahmed had failed to give the registration number of the official mobile. He had denied the suggestion that the motorcycles recovered from the possession of the appellant Muhammad Ayub and co-accused Attaullah alias Karman were stolen from Shershah. Learned defence counsel has contended that the testimony of the star witnesses of the case does not depict even an iota of evidence about the- conceivable .design by the appellants and co-accused for making preparation to commit dacoity. The judgment of the trial Court reveals that conviction has been recorded on two folds. Firstly, from the evidence adduced by the prosecution, the appellant had assembled for preparation to commit dacotiy. As a matter of fact from the statement of the prosecution witnesses no evidence has been spelled out that the appellants were making preparation to commit dacoity, on the contrary HC Mukhtar Ali deposed that the appellants were sitting on motorcycles on the exist gate of the park at Boat Basin, Clifton. Second part relates to the commission of offence the appellant had assembled for the purpose of committing dacoity or making preparation for the same. Mere recovery of weapons from the possession of the appellants and co-accused, who were part of the unlawful assembly, it cannot be presumed that they were making preparation to commit dacoity. This view finds support from the case of Muhammad Sohail v. The State (PLD 1994 Lahore 383). It is established principle of law that initial burden was upon the prosecution. The learned counsel for appellants Abdul Ghafoor has produced certified copies of Cr. Case No.4 of 2001 under. Crime No. 7 of 2007, under section 13-E, Arms Ordinance of Police Station Laduin, Sajawal, which indicates that appellant Abdul Ghafoor was acquitted on 24-5-2003 while the present case was lodged against him on 12-5-2003. There appears to be material ambiguity about the registration of the case and the involvement of the appellant Abdul Ghafoor in the charged offence. I am convinced that reliable evidence is not available as mere assembly of five or more persons duly armed with weapons would not raise presumption that they had assembled to commit dacoity. In this regard, I am fortified from the following case-law. (1) Khawar and others v. The State (PLD 1995 Karachi 105). (2) Siraj-ul-Haq and 2 others v. The State (1994 PCr.LJ (Karachi 685). (3) (3) Asif v. The State (1998 PCr.LJ (Karachi) 1004). In the present case mere allegations in the F.I.R. recovery of weapons from the possession of the appellants are not enough to presume that the appellants were likely to. commit offence of dacoity. In fact there must be some other material showing the conceivable designs on the part of the appellants, such material is absent in the prosecution case. As a result of the above discussion, I am of the considered view that the charges against the appellants are baseless, conviction is not based upon sound reasoning it cannot be sustained under the law. The impugned judgment is hereby set aside, the appeals are .hereby accepted. The appellants are ordered to be released forthwith, if not required in any other custody case. These are the reasons for the short order, dated 7-8-2007, whereby the both appeals were allowed. H.B.T./A-91/K Appeals accepted.