SIRAJUL HAQUE Versus STATE

1. HAZIQUL KHAIRI, J . This judgment will dispose of two criminal appeals one filed by appellants Sirajul Haque, Jawaid Akhtar, Abdul Qayum and the other by Muhammad Shahid Lodhi under section 7 of Suppression of Terrorist Activities Act read with section 410, Cr.P.C. whereby they have impugned the judgment dated 6-2-1993 passed by the learned Special Court-I (S.TA.) at Karachi convicting and sentencing all the appellants to undergo R.I. for 7 years and to pay Rs.10,000 as fine or in default to undergo R.I. for one year more.

2. Briefly stated the facts of the case are that on 13-10-1991 Inspector Mirza Abdul Majeed Baig was patrolling when he received spy information that some persons with weapons and ammunition were sitting on the back side of the National Stadium in front of Al-Ashraf Square in Block 17, Gulshan-e -Iqbal, Karachi. At about 8-45 p.m. he alongwith others reached the said place and saw five persons sitting there. Out of them four were sitting on two motor cycles and the 5th was standing near a motor-cycle. The police party encircled them and apprehended the four accused persons who are appellants herein whereas the 5th namely Rafatullah succeeded to escape.

3. The appellants were charged under section 399/402, P.P.C. for committing robbery which was within the cognizance of the said Court. The appellants pleaded not guilty to the charge.

4. The prosecution produced two witnesses namely Iqtedar Alain P.W.1 and Mirza Abdul Majeed Inspector of Police P.W.2, who corroborated the prosecution story.

5. Mr. Abdul Waheed Katpar, Advocate assailed the judgment of the learned trial Court on four grounds namely:--

(1) Prima facie no case is made out against the appellants under section 399/402, P.P.C. as the record shows that there were four persons arrested by the police and not five persons which is minimum requirement of law for establishing dacoity.

(2) There is no evidence that the appellants were making preparation to commit dacoity.

(3) As per deposition of prosecution witnesses and other record the alleged arrest had taken place at 8-45 a.m. and not at mid-night.

(4) The record shows that the arrest was made not at solitary place but in a busy area.

6. The first objection raised by the learned counsel for the appellant is not tenable as it is the prosecution case that five persons were making preparation for committing dacoity. The fact that one of them had absconded will not purport to render the accusation against all others of no legal effect or take away the case against them from the ambit of section 399, P.P.C.

7. As to the question whether there is evidence that the appellants were making preparation for dacoity or not, learned counsel for appellants rigorously urged that the only evidence available on record is that the said four appellants were found together on two motor-cycles fully armed on the basis of which no conviction or sentence can sustain. There is not an iota of evidence in regard to preparation of dacoity. In support of his contention reliance was placed by him on Shaffaqat Ali Mullan alias Juj v. The State 1991 P Cr. L J 2395 in which the learned Judges of Lahore High Court found no direct or indirect evidence that the appellants had prepared or were making preparation to commit dacoity held that simply because they were armed it cannot be inferred that they were making preparation to commit an offence of dacoity: We are in agreement with learned Judges of the Lahore High Court and are also of the view that mere assembly of five or more armed persons at one place will not give rise to any presumption that they had assembled there to commit dacoity. They might have assembled there to commit some other crime such as kidnapping or murder. However, in the absence of satisfactory evidence it cannot be presumed that the appellants had prepared themselves or had been making preparation to commit dacoity.

8. While dealing with the third and fourth grounds it is pertinent to note that the stile reason which prevailed upon the learned trial Judge for conviction and sentence of the appellants is that they "were found at mid-night in lonely place armed with deadly weapons like fire-arms to commit dacoity in furtherance of their common intention". Nowhere in the entire record there is a word that the appellants were found at midnight. In fact the evidence of both prosecution witnesses, F.I.R. etc. establish beyond any doubt that the appellants were arrested at 8-45 a.m. Again P.W.2 Mirza Abdul Majeed Inspector in his deposition clearly states "that flats which are near the place of incident are occupied by inhabitants. The road, on which the place of incident is situated is a busy road and that "office of Al-Mushriq Centre, Ashraf Square is hardly 50 to 100 paces away".

9. Thus the time of incident as well as the place of incident being lonely place stand falsified by the prosecution witnesses and other record. This position is not disputed by Mr. Muhammad Zubair Oureshi, learned counsel for A.-G. His submission however is that the matter may be remanded for fresh adjudication by the learned Special Court I (S.T.A.), Karachi. We are not inclined to agree with him as it is not a case for remand for the reason that there is nothing left for further inquiry and the prosecution cannot be allowed to fill in the lacuna and no useful purpose will be served as benefit-of doubt has already accrued in favour of the appellants. We accordingly accept the appeals, set aside the conviction and sentence of the appellants and direct the Jail Authorities to release them if not required in any other case.

10. N.H.Q./S-1029/F Appeals accepted.