ALI ASGHAR Versus THE STATE

MUHAMMAD SHARIF, J.‑‑ Criminal Appeals No. 1 and 4 of 1988 pertain to the same incident and are. directed against the same judgment dated 's‑12 1'.387 pronounced by Mr. Muhammad Sultan Alam, learned Judge, Punjab Special Court for Speedy Trials No. V1, Bahawalpur, so they are being disposed of by means of this consolidated judgment. The learned trial Court had convicted Muhammad Iqbal. Muhammad Hussain, Muhammad Bilal and Ali Asghar, the. appellants, in both these appeals, under section 402, P.P.C. and held awarded them six years' R.I. each. They were fined Rs. 5,000 each or in default of the payment of fine to suffer rigorous imprisonment for one year each.

2. The facts, which led to the detection of this crime, in substance, are that on 13‑12‑1986, in the evening, Muhammad Sadiq Inspector (PW‑3), who was on patrol duty with Riaz Ahmad A.S.I. and Abdul Aziz, an independent witness, received a secret information that certain persons were going to commit dacoity who were seated in a car. A Toyota Corolla 1974 Model car, yellow colour, was seen being driven from the side of Cholistan towards Kot Sabzal, The police patrol party signalled them to halt but they acceierated the speed of the car and tried to escape. The police patrol party headed by Muhammad Sadiq Inspector chased them. Muhammad Sadiq sent a wireless message to the Police check‑post Kot Sabzal. The car was being driven by Ali Asghar and all the appellants were found seated in the said car. The car was halted after downing the barrier at Kot Sabzal. The police patrol party rounded up the car and arrested all the appellants. It may be noted that Muhammad Akbar and Elahi Bakhsh accused had absconded and they were tried in absentia and were awarded the aforementioned punishment. From Muhammad Iqbal appellant unlicensed gun P.1, ten live cartridges Ex. P. 2/1‑10, Bandolier P. 3 and two live cartridges Ex. P. 4/1‑2, which were found m the gun, were recovered and taken into possession vide memo. Ex. PA. The police patrol party recovered a stengun P. 5 with its magazine containing fourteen bullets Ex. P. 6/1‑14 which were taken into possession vide memo. Ex. P.B. Muhammad Hussain appellant had a rifle P. 7 with five live cartridges Ex. P. 8/1‑5, a plastic bag P. 10 containing 54 live bullets Ex. P. 9/1‑54 which were recovered from him and taken into possession vide memo. Ex. P.C. The car, in which the appellants were sitting and was being driven by Ali Asghar appellant, was also taken into possession vide memo. Ex, P.D. Muhammad Sadiq, Investigating Officer (PW‑3) prepared complaint Ex. P.E. in his own handwriting which was sent to Police Station Kot Sabzal and the formal F.I.R. Ex. P.E./1 was recorded by Maqbool Hussain Moharrir Head Constable. The site‑plan Ex. P.F. was also prepared. After the completion of the investigation, the challan of the appellants was submitted and they were awarded the aforementioned punishments.

3. Riaz Ahmad A.S.I. PW‑l. who was a member of the police patrol party, has deposed that on the receipt of secret information that the dacoits were being driven in a car, they chased the said car which halted near the check‑post Kot Sabzal after downing the barrier. All the appellants including their absconded accomplices were arrested. He has correctly stated the recovery of weapons from Iqbal, Akbar and Muhammad Hussain. He has added that they had received an information that the appellants were going to Sind with intention to commit dacoity and they had chased their car upto 7‑8 miles.

4. Abdul Aziz PW‑2 who had gone to Police Station Kot Sabzal joined the police patrol party headed by Muhammad Sadiq Inspector Police who is familiar with him since long. He has testified that on Tillu Road. they were informed about the arrival of the dacoits in a car and the police patrol party chased the car and overtook them near the check‑post of Kot Sabzal when the barrier was downed and there all the appellants and their absconding accomplices were arrested. He has corroborated the recovery of fire‑arms with Iqbal, Muhammad Hussain and Akbar. He has added that the car of the appellants was chased upto 7‑8 miles.

5. Muhammad Sadiq Inspector/Incharge Anti‑Dacoity Staff, Sadiqaba4 who is also a complainant in this case, appeared in the witness‑box as PW‑7 and has corroborated the fact that, on the receipt of a secret information, some armed dacoits were coming from the side of Cholistan and were heading towards Kot Sabzal area for the commission of dacoity. He signalled to stop the said car but the driver accelerated the speed and they chased the car after passing a message at wireless to the check‑post to close the barrier. The car halted at the said barrier and they rounded up the car with the aid of their staff. Muhammad Sadiq added that Ali Asghar appellant was driving the car whereas Iqbal, Bilal and Muhammad Hussain were seated in the said car, whom he identified. He has stated that Elahi Bakhsh and Muhammad Akbar were absent and he arrested them on the spot. He has deposed that gun P. 1, ten live cartridges Ex. P. 2/1‑10, a Bandolier P.‑3 containing the said cartridges and two live cartridges from the gun Ex. P. 4/1‑2 were taken into possession from Iqbal appellant vide memo. Ex. PA. Akbar appellant had a sten gun P. 5 with fourteen bullets Ex. P. 6/1‑14 which were recovered and taken into possession vide memo. Ex.P.B. He has added that Muhammad Hussain appellant had a rifle P. 7 in which there were five bullets Ex. P. 8/1‑5 and a plastic bag Ex. P. 10 containing fifty‑four bullets Ex. P. 9/1‑54 was recovered from his possession. A Toyota Corolla car was also taken into possession vide memo Ex. P.D. He is definite that according to his investigation, if the appellants had not been apprehended, they would have committed dacoity and the appellants could not produce any licence of the recovered arms.

6. Maqbool Hussain H.C. (PW‑4) had registered the formal F.I.R. Ex. P.E./1.

7. When examined under section 342, Cr.P.C. all the appellants took the same defence, which Muhammad Iqbal appellant had taken m response to a question, as to why he has been involved in this case. His explanation may be reproduced as under:‑‑

"I was going alongwith the co‑accused to attend marriage party of Saifal Khan in Taxi car belonging to Ali Asghar accused which I had hired. When we reached Check Post Kot Sabzal, the Incharge of the Check Post enquired about the licence of the gun Ex. P.I. on which hot words were exchanged between us and him and for this reason he felt annoyed and passed a wireless message to P.S. Kot Sabzal from where Muhammad Sadiq S.H.O. came and cooked up the present false case against me. My companions had no arms with them at the same time and the same were planted upon them to make the false case."

8. In defence, Muhammad Iqbal appellant appeared as DW‑1 and stated that he had wrongly advised his counsel that the marriage, which they were going to participate, was to take place on 13‑12‑1986 and, in fact, the marriage of Saifal Khan was to be solemnised on 12‑12‑1986. He has stated that it was the licensed gun of his father which he was having at that time but no licence was produced before the learned trial Court. An invitation card has been produced in which the invitee was Dr. Muhammad Nawaz and the names of the bride grooms are Zulfiqar Ali and Aftab Ali and not Saifal Khan. The invitors are, however, Muhammad Saifal, etc. The marriage was to take place on 12‑12‑1986. This defence version does not ring true because the invitation card which was addressed to the appellants had not been proved on the file. It has been stated that it had been attached with the file when the bail petition of Muhammad Iqbal was moved. In that event that file could have been summoned and the copy of the invitation card addressed to Muhammad Iqbal and others should have been placed on the file. But no step in that direction had been taken. The appellants were apprehended on the evening of 13‑12‑1986 and it does not stand to reason that they were going to participate in a marriage which was to take place a day earlier. The defence version does not ring true.

9. With reference to Gul Hassan and 2 others v. The State (1994 F Cr. L J 2476), which is a single Bench precedent, it has been contended that it has not been established that the appellants intended to commit dacoity and they deserve acquittal in this case. In the aforementioned precedent, the recovery of firearms had not been proved and the requisite number of persons on account of the acquittal of the co‑accused were less than five and, therefore, the accused were exonerated. In the instant case, the recovery of the firearms has been proved and the persons who had assembled to commit dacoity are more than five. This precedent does not in any way help the appellants.

10. The police patrol party should consist of Police Officers and, in this case, one Abdul Aziz has also been associated who is an independent person and is not in any way inimical towards the appellants. Three of the appellants were armed with deadly firearms with sufficient ammunition with them, who were apprehended in the evening. The time of night was safer and opportune for them to commit dacoity for which they appeared to have assembled. It is very difficult to prove the intention of the appellants to do certain act and it cannot be inferred from the circumstances. The appellants could not prove that they were to participate in the marriage of the sons of Saifal Khan as they were apprehended on 13‑12‑1986 in the evening when the said marriage was over a day prior to this incident. The prosecution has established their case against Muhammad Iqbal, Muhammad Hussain and Muhammad Bilal appellants.

11. As regards Ali Asghar appellant, it has been contended that his vehicle had only been hired and he did not know what was the intention of the other appellants and he was innocent in this case. Had Ali Asghar been innocent and ignorant of the nefarious design of the other appellants, he would have stopped I F his car when signalled by Muhammad Sadiq Inspector Police but he accelerated the speed of the car and tried to escape. This fact shows that he had come to aid the other appellants. Section 402, P.P.C. may be reproduced for the facility of reference:‑‑

"S. 402: ‑Assembling for purpose of committing dacoity. ‑‑Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

12. Dacoity has been defined in Section 391 of the PPC which runs as under:‑‑

"S. 391.‑‑Dacoitv. ‑‑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 persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".

According to the definition of dacoity, a person who is present and aids the commission or attempt when there are five or more persons then every person so committing, attempting or aiding is said to commit dacoity. Ali Asghar appellant has aided the other appellants by providing them his car and he has also been rightly convicted and sentenced. The quantum of sentence awarded to the appellants is not very severe. We, therefore, dismiss both these appeals.

S.G.D./A‑410/L

Appeals dismissed.