RAHAT SHAH and 3 others vs THE STATE

' Having been involved in case registered vide F.I.R. No,962, dated 28-11-2001 under sections 400/401, P.P.C., 13, Arms Ordinance and 4, S.T.A. At Police Station Pishtakhara, the accused-petitioners moved application for their release on bail in the Court learned Judicial Magistrate, Peshawar, who vide his order, dated 8-12-2001 dismissed the same. Thereafter they moved the Court of learned Additional Sessions Judge, Peshawar but their application was rejected vide order dated 15-12-2001. Now they have moved this Court for their release on bail.

2. The local police on information that some armed persons in order to commit dacoity had assembled at Dhora Road near Kikaran Suffaid Dheri went to the spot and overpowered four persons. From the Hijrat accused-petitioner No,2 one .30 bore pistol with 10 cartridges of .30 bore, from the possession of Rahat Shah accused-petitioner No,1 one kalashnikov with 29 cartridges of 7.62 bore, from the possession of Lal Sher accused-petitioner No,,3 one 7 mm rifle with 26 cartridges and from the possession of Dil Nawaz one kalashnikov with 14 cartridges of 7.62 bore were recovered. Another accused, who was later on identified as Shahid escaped from the scene of crime.

3. I have heard Mr. Ahmad Salim Khan, Advocate learned counsel representing the petitioner, Mr. Abdul Rauf Khan Gandapur, the learned counsel representing the State and perused the record.

Muhammad Sher, S.-I./Investigation Officer was summoned vide order, dated 19-2-2002 to explain as to what was the evidence available on record to connect the petitioners with the commission of offence.

4. The Investigating Officer stated at the bar that the accused-petitioners were arrested on the spot when they were duly armed and there is no other evidence available on record to connect them with the commission of offence as public in general does not come forward to give evidence against the culprits. With the valuable assistance of Mr.Ahmad Salim Khan, Advocate and Mr. Abdul Rauf Gandapur, the learned State Counsel the entire record was gone through page by page. Only two statements of Hamayun Khan, S.-I. And Sahib Gul, S.-I. Were recorded under section 161, Cr.P.C.

On 28-11-2001, the date on which the accused were arrested. The recovered arms were also sent to the Fire-Arms Expert on 29-11-2001 who gave his opinion on 6-12-2001 that two kalashnikovs and one 7 mm rifle were of foreign origin, whereas .30 bore pistol was Pak-made. The Arms Expert did not bother to mention as to whether the said Arms were in serviceable condition or not. Except the abovementioned evidence, the Investigating Officer did not bother to collect any other piece of evidence connecting the accused-petitioners with the commission of offence.

5. Offence for preparation of dacoity starts with preparation which consists of any device or arranging the means or measure necessary for the commission of offence. In the case in hand there is no evidence available on record to show that the accused-petitioners were devicing or arranging means or measures for committing dacoity. The question as to whether they had assembled for preparation of dacoity or they were busy in gossip after Aftari would need further enquiry. In Amir Ali v. State 1994 PCr.LJ 576 it was held:-- "It is contended by the learned counsel for the applicant that assembly of five armed persons by itself would not constitute preparation for dacoity and, therefore, it is a case which requires further enquiry. In support of his contention, learned counsel for the applicant had placed reliance on 1990 PCr.LJ 41; AIR 1960 Pb. 452; AIR 1940 Pb. 456; AIR 1952 Pb. 249 and 1989 PCr.LJ 2314. It is also candidly conceded by the learned Additional Advocate-General that it is a case of further inquiry. We accordingly order that the applicant may be enlarged on bail upon furnishing surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court."

6. So far as the applicability of sections 13, West Pakistan Arms Ordinance and 4, Suppression of Terrorist Activities (Special Courts) Act is concerned, the same shall be seen after recording of evidence. As mentioned above the report of the Fire-Arm Expert does not indicate as to whether the allegedly recovered arms were in serviceable condition or not.

7. For the foregoing reasons I accept this application and admit the accused-petitioners to bail provided each one of them furnishes bail bonds in the sum of Rs,1,00,000 (Rupees one lakh) with two sureties each in the like amount to the satisfaction of the learned Judicial Magistrate, Peshawar, who shall see that the sureties are local, reliable and men of means.