ABDUL ZUBAIR vs The STATE
This petition for leave to appeal is directed against the order of the High Court of Sindh dismissing the bail application of the petitioner in a case registered under sections 399 and 402 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioner and two co-accused were apprehended in a taxi while possessing firearms and allegedly planning a dacoity. The core legal question was whether the assembly of fewer than five persons satisfies the ingredients of sections 399 and 402 of the Pakistan Penal Code 1860 for making preparations or assembling for dacoity. The Supreme Court held that since sections 399 and 402 require an assembly of not less than five persons and only three accused were found in the vehicle, the case against the petitioner requires further inquiry. Consequently, the Court converted the petition into an appeal, allowed it, and granted bail to the petitioner, laying down the principle that an assembly of fewer than five persons fails to satisfy the essential numerical threshold required under sections 399 and 402 of the Pakistan Penal Code 1860.
- Does the assembly of fewer than five persons satisfy the requirements of sections 399 and 402 of the Pakistan Penal Code 1860?
- Whether the recovery of unlicensed firearms and arrest in a vehicle containing only three persons warrants further inquiry for offences under sections 399 and 402 of the Pakistan Penal Code 1860?
- Section 399, Pakistan Penal Code 1860
- Section 402, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
ORDER
MUHAMMAD MUNIR KHAN, J---This petition for leave to appeal is directed against the order dated 23-5-1995 of High Court of Sind, Karachi, whereby Bail Application of Abdul Zubair petitioner in case under section 399/402 P.P.C., registered at Police Station Landhi, Karachi East, vide F.I.R. No.59 of 1995 dated 14-3-1995, was dismissed. According to the prosecution, Mirza Abdul Majeed, S.H.O., Police Station Landhi received secret information that a gang of dacoits with the intention to commit dacoity was sitting in Taxi Car No. 1240 at Bus Stop Baber Market, Landhi, Karachi. He raided the vehicle and arrested the petitioner and his co-accused namely, Hidayatullah and Asif. He recovered loaded .30 bore revolver from the petitioner and T.T. Pistols from his co-accused in the presence of Muhammad Akbar and Muhammad Ashraf, Constables.
2. Learned counsel for the petitioner has argued that the petitioner has not committed robbery or dacoity and he has been arrested on account of suspicion so he is entitled to be released on bail.
Notice was issued to the Advocate-General, Sind for appearance atongwith Police files/papers but no one is present on his behalf.
3. We have considered the matter carefully. We find that a case under section 13 of the Arms Ordinance for the recovery of unlicensed .30 bore revolver has separately been registered against the petitioner. The petitioner and his co-accused had not committed robbery. Plain reading of sections 399 and 402, P.P.C., shows that for convicting the accused under these sections of the A P.
P.C. The number of the persons assembled for the purpose of committing dacoity shall not be less than five, but in the instant case, the number of the accused found in the Taxi Car was three. This being the position, the question whether the accused are guilty of offences punishable under section 399/402, P.P.C., requires further enquiry.
4. For all these reasons, the petition is converted into appeal and is allowed. The petitioner shall be released on furnishing bail bonds in the sum of Rs.50,000 with to sureties in the like amount to the satisfaction of the trial Court.
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