HAMEER And Others vs THE STATE

1. The appellants Hameer son of Sahib Dahri, Haji Ahmed son of Faqir Muhammad, Jam son of Minhon Burdi, Haji Mashooq son of Misri Khan Lashari and Rasool Bux son of Ramzan Lashari were tried by the learned Additional Sessions Judge, Kandiaro for offences under sections 307, 353, 402, P.P.C. Who vide his judgment, dated 20-5-1987 convicted the appellants under section 402, P.P.C.

2. And sentenced each of them to R.I. For 5 years and fine of Rs.1,000 or in default of payment of fine to undergo R.I. For 6 months more. The appellants have now challenged their conviction and sentences through this appeal.

3. The facts of the case are that on 16-12-1986, S.H.O. Rafiuddin Khoso of P.S. Kandiaro alongwith his staff was on patrol duty, when he reached the road leading from Halani to Mehrabpur it was 7-00 p.m. When he saw that the road was blocked by stones of different sizes. When they stopped their vehicle, five armed persons appeared and moved towards their vehicle. On the light of the vehicle, they saw two persons were armed with guns, one with pistol, one with hatchet and the other with Lathi. The complainant immediately got down from the vehicle-and also gave warning to those persons to stop. The accused opened fire with their weapons, while the police also fired upon the accused. The firing continued for some time, thereafter the accused stopped firing and raised their hands, on account of which they were apprehended. On enquiry all the accused disclosed their names and on their search weapons were recovered and seized under a Mashirnama in presence of Mashirs A.S.I. Fida Hussain Shah and H.C. Muhammad Mithal. All the accused alongwith their respective weapons were brought to Police Station Kandiaro where the report was lodged against the accused by the S.H.O. Rafiuddin Khoso, for offences under section 307/353/402, P.P.C. He also lodged separate reports against accused Hameer, Haji Ahmed and Haji Mashooq for offence under section 13-D of the Arms Ordinance.

4. The investigation was also conducted by the S.H.O. Himself and after usual investigation he challaned the accused.

5. At the trial prosecution examined P.W.1 Syed Fida Hussain Shah (A.S.I.) who was a member of the police party and also acted as a Mashir of arrest and recovery of weapons from the accused. The next witness examined was P.W.2 Rafiuddin Khoso (S.H.O.) who was the seizing officer. Thereafter the prosecution closed its side.

6. At the, conclusion of the prosecution case, all the accused were examined under section 342, Cr.P.C. And they all denied the pr6secution allegation. However, none of the accused, wished to be examined on oath, nor any of them wanted to examine any defence witness. The trial Court accordingly convicted the accused as already mentioned hereinabove.

7. I have heard Mr. Kazi Azizullah learned counsel for the appellants and Mr. Mushtaq Ahmed Amir Mahar Advocate for A.-G. For State. The latter has not supported the conviction of the appellants.

8. The learned counsel for the appellants has rightly argued this was not a case under section 402, P.P.C.--simpliciter, but in fact, the prosecution case is that accused fired upon the police party, therefore, 307, P.P.C. Was applied. Likewise accused are alleged to have caused hindrance to the police in the discharge of their duties. Therefore, 353, P.P.C. Was also applied. As such the offences under section 307/353/402, P.P.C. Are interlinked and the same arc alleged to have ken committed at one and the same time, in the course of same transaction. Therefore, it will be wrong to believe the same evidence in respect of offence under section 402, P.P.C. And disbelieve the same evidence in respect of offences under section 307/353, P.P.C. As has been done in this case by the trial Court.

9. The learned counsel has also argued that even the offence under section 402, P.P.C. Is not made out, as its requirements arc not fulfilled. In this regard I may refer to the ingredients of section 402, P.P.C. This section firstly requires there should be `5 or more persons' and secondly -they `assemble for the purpose of committing dacoity'. It will therefore, appear that both the ingredients are to be proved by the prosecution beyond all reasonable doubts. I In the present case, the 5 appellants were found together, but it is not proved that they had assembled for the purpose of committing dacoity. In this regard except the bare words of the 2 witnesses, there is no other reasonable material to infer that the present 5 appellants had assembled for the purpose of committing dacoity.

10. There is another difficulty in this case which is also coming to the way of the prosecution. The same evidence compromising of P.W.1, A.S.I., Fida 'Hussain Shah and P.W 2, S.H.O. Rafiuddin Khoso has been disbelieved by the trial Court so far as the offences under sections 307 and 353, P.P.C. Arc concerned. How can the same witnesses be believed in respect of the offence under section 402, P.P.C. Without any corroboration. Moreover, in order to prove the offence under section 402, P.P.C.

11. There should be some extraneous circumstance leading to the conclusion that the accused had assembled for the purpose of committing dacoity. Mere bare words of the witnesses will not be enough. If such a course is adopted, then; it will be laying down a dangerous preposition of law. In such an eventuality, wherever any 5 or more persons arc found together, they can be conveniently hauled up by the police, for having assembled for the purpose of committing dacoity. Therefore, as already mentioned, there should be some circumstance other than the bare words of a the witnesses, which should lead to the conclusion, that the accused had assembled for the purpose of committing dacoity.

12. In the present case no such circumstances are available on record nor can the evidence of the two police witnesses be acceptable, specially when they have been disbelieved by the trial Court regarding the offences under sections 307 and 353, P.P.C. In these circumstances all that the prosecution has been able to prove beyond all reasonable doubt is that, 5 accused persons were arrested from whose possession certain unlicensed weapons were recovered for which they are being tried separately under the Arms Ordinance.

13. From my above discussion, I have no hesitation in holding that the offence under section 402, P.P.C.

14. Is not established against the appellants. Consequently the conviction of the appellants is not sustainable. In the result this appeal is allowed, the conviction and sentences of the appellants are set aside. The appellants are on bail and their bail bonds stand discharged.

15. By a short order, dated 14-5-1992, I had allowed the appeal. These are the detailed reasons for the same.

16. N.H.Q./H-324/K