2007 PLP 646 (YLR)

ASIF SAEED KHAN KHOSA, J.

Through this writ petition the petitioner has sought quashing of F.I.R. No.885 registered at Police Station, Ghulam Muhammad Abad, Faisalabad on 7-11-2005 in respect of offences under sections 398/401, P.P.C. Respondents. Nos.7 and 8 have joined the petitioner in making the same request.

2. I have heard the- learned counsel for the parties and have gone through the record of this case with their assistance.

3. An offence under section 398, P.P.C. is attracted "if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon" whereas in the case in hand a bare reading of the F.I.R. itself shows that no attempt to commit any robbery or dacoity was underway at the time of apprehension of the petitioner and his co-accused. There is absolutely no material or evidence available on the record to show that any such attempt had actually been made by the petitioner and his co-accused at the relevant time. Mere armed presence of an accused person at a place does not by itself attract the provisions of section 398, P.P.C.

4. An offence under section 401, P.P.C. is constituted only if the accused person belongs to "any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery" but in the case in hand there is absolutely no proof available on the record to show or to establish that the petitioner and his co-accused were members of a group of persons habitually committing theft or robbery. Prior to registration of the impugned F.I.R. only F.I.R. No.882 of 2005 had been registered against the petitioner at the relevant Police Station but the complainant of that case had sworn an affidavit that he had not lodged that F.I.R. A copy of the said affidavit is available on the present file as annexure-D. On the basis of such a statement made by the complainant of that F.I.R. the petitioner was discharged in that case by the Area Magistrate and this is so evident from the document annexed with this petition as Annexure-E. In that order of discharge the learned Magistrate had expressly observed that the petitioner was "a noble citizen" and legal/departmental action was recommended by the learned Magistrate against the police officer who had falsely involved the petitioner in that criminal case on the basis of a concocted statement of the complainant which had been disowned by the complainant himself. Even the learned Additional Sessions Judge, Faisalabad dealing with the petitioner's application for bail in connection with that criminal case had observed in his order, a copy whereof has been appended with this petition as annexure-G, that the petitioner was not involved in any such case previously. This clearly establishes that the petitioner or his co-accused did not belong to any wandering or other gang of persons associated for the, purpose of habitually committing theft or robbery and, thus, it was wrong on the part of the complainant of the present case to have implicated the petitioner in. an offence under section 401, P.P.C.

5. For what has been observed both the offences allegedly committed by the petitioner and his co-accused do not stand constituted on the basis of the facts alleged in the impugned F.I.R. and, thus, lodging of the said F.I.R. and pursuing the same any further by the prosecution appears to be an exercise in futility. This writ petition is, therefore, allowed with no order as to costs and the impugned F.I.R. is hereby quashed. H.B.T./M-74/L F.I.R. quashed.