MUHAMMAD WASEEM vs THE STATE
This petition for post-arrest bail arises from an F.I.R. registered under Sections 399 and 401 of the Pakistan Penal Code 1860, involving allegations that the petitioner and two accomplices were preparing to commit dacoity when apprehended by police. The core legal question was whether the offence of dacoity under Section 399, Pakistan Penal Code 1860, is constituted when fewer than five persons are involved in the preparation. The Court held that the offence of dacoity requires the involvement of five or more persons, as defined by Section 391, Pakistan Penal Code 1860. Since the F.I.R. alleged the involvement of only three persons, the Court found the provisions of Section 399, Pakistan Penal Code 1860, were not prima facie attracted. Furthermore, noting the absence of independent witnesses during the recovery process and the petitioner's prior acquittal in other cases, the Court concluded that the case warranted further inquiry into the petitioner's guilt. Consequently, the Court granted post-arrest bail, establishing that the statutory threshold for dacoity is not met where the number of participants is below five.
- Does the offence of dacoity under Section 399 of the Pakistan Penal Code 1860 require the involvement of at least five persons?
- Can a bail application be granted when the prosecution fails to associate independent witnesses with the recovery process?
- Does the absence of the requisite number of persons to constitute dacoity entitle an accused to bail on the grounds of further inquiry?
- Section 391, Pakistan Penal Code 1860
- Section 399, Pakistan Penal Code 1860
- Section 401, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' KHURSHID ANWAR BHINDER, J.---Through the present petition, Muhammad Waseem petitioner seeks post-arrest bail in case F.I.R. No, 385, dated 5-10-2006, registered under sections 399/ 401, P.P.C. At Police Station Shakargarh.
2. Brief facts of the case are that petitioner along with his accomplices armed with fire-arm weapons was hiding himself in a mango garden and was preparing to commit dacoity, where police raided and recovered fire-arm weapons from them.
3. Learned counsel for the petitioner submits that the petitioner is behind the bars since 5-10-2006 without any progress in the trial. There is no evidence available on record to connect the petitioner with the commission of the said offence. He, while referring section 399, P.P.C., submits that the provisions of section 399, P.P.C. Are not attracted in the present case as to constitute an offence under section 399, P.P.C. There has to be an unlawful assembly of five persons whereas in the instant case only three persons were making preparation for the commission of the offence. He further submits that the case against the petitioner does not fall within the prohibitory clause of section 497, Cr.P.C. And no role has been attributed to the petitioner. Petitioner is a previously non- convict, therefore, this case is that of further inquiry into his guilt.
4. Learned APG while opposing the bail application submits that the petitioner was arrested with fire-arm weapon and he has also history of criminal cases.
5. I have heard the learned counsel for the petitioner as well as the learned APG for the State and have also perused the record. There is no denying the fact that the petitioner has not been attributed any role. As far as the question of previous history of the involvement of the petitioner in criminal cases is concerned, learned counsel for the petitioner has referred to two cases in which the petitioner was already acquitted.
6. Now the question arises whether this offence has been made out under section 399, P.P.C. Or not.
In order to establish this fact it is to be seen from the record that how many persons were there to form an unlawful assembly. In order to see whether the provisions of section 399, P.P.C. Are attracted in this case or not, reference is made to section 391, P.P.C. Which states as under:-- "391. Dacoity. ---When five or more persons conjointly commit or attempt to commit a robbery or where whole number of persons conjointly committing or attempting to commit a robbery, and person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".
' 'Prima facie, as per the narration of the F.I.R. Only three persons were involved B in the case, therefore, the provisions of section 399, P.P.C. Are not attracted.
7. As far as the question of recovery is concerned, there were only the police officials who had effected the recovery from the petitioner and no independent person of the locality was associated in the recovery process, therefore, possibility of false implication of the petitioner cannot be ruled out. Moreover, neither the petitioner nor his accomplices had committed any offence regarding dacoity or theft etc., therefore, this case is that of further inquiry into the guilt of the petitioner.
8. Under the circumstances, I allow C this petition and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties in the like amount each to the satisfaction of the trial Court/Illaqa Magistrate.