MUHAMMAD ILYAS Versus THE STATE

ORDER

Through this consolidated order I propose to dispose of Criminal Miscellaneous Nos. 930-B, 908-B and 1011-B of 1999 together as in all these petitions the petitioners therein have sought post-arrest bail in the same case.

2. Muhammad Ilyas, Muhammad Zaman, Sabir Ali, Abdul Hameed, Shafqat Ali, Shaukat alias Shauki and Ishfaq alias Billa petitioners are accused persons in case F.I.R. No. 712 of 1998 registered at Police Station Ghalla Mandi, Sahiwal on 31-12-1998 for offences under section 399/402, P.P.C. The allegation against the petitioners is that they were found by a raiding police party sitting with muffled faces after having armed themselves with various weapons with an intention to commit dacoity. All the petitioners were apprehended at the spot and subsequently their applications for post-arrest bail were dismissed by the learned Magistrate Section 30, Sahiwal and the learned Sessions Judge, Sahiwal on various dates. Hence, the present petitions before this Court.

3. After hearing the learned counsel for the parties and going through the record it has been noticed that so far the prosecution has collected no evidence as regards mens rea of offences under sections 499 and 402, P.P.C. A bare reading of the said provisions of law shows that mere armed presence of certain persons with muffled faces at night time is not sufficient to attract the provisions of the said penal sections but the basic ingredient in both the said provisions is preparation for committing a dacoity. The prosecution evidence collected against the petitioners is so far completely silent as to how this preparation is to be inferred against the petitioners in the circumstances of the case. It has been consistently held by the superior Courts that mere presence of accused persons together after having armed themselves with deadly weapons is not per se sufficient to make out a case of preparation to commit dacoity. A reference in this respect may be made to the cases of Muhammad Ayyub Memon v. The State 1990 PCr.LJ 41, Ameer Ali Khan v. The State 1994 PCr.LJ 576, Muhammad Asif and another v. The State 1995 MLD 359 and Hameer and others v. The State 1992 PCr.LJ 2030. In this view of the matter the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C. It is trite law that in cases attracting subsection (2) of section 497, Cr.P.C. bail is to be granted as a matter of right and not by way of any grace or concession. These petitions are, therefore, allowed and the petitioners are admitted to bail in the sum of Rs.50,000 (rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.

N.H.Q./M-1141/L

Bail allowed,