P L D 2010 Quetta 58
Before Jamal Khan Mandokhail, J
KHALO and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeals Nos. 96 and 104 of 2009, decided on 12th March, 2010.
Penal Code (XLV of 1860) ---
----Ss. 399, 400 & 401 ---Making preparation to commit dacoity ---Ingredients ---Appreciation of
evidence ---Benefit of doubt ---To constitute an offence under S.399, P.P.C., intention and
preparation were the basic ingredients on the basis of which one could be charged ---On perusal
of statements of witnesses, none of them had stated a single word showing their personal
knowledge about the intention of accused person or preparation for commission of the offence ---
Evidence had also indicated that no overt act had been shown on the part o f accused persons so
as to prove their intention ---Prosecution witnesses had simply relied upon the spy information ---
Information simpliciter, would not constitute any offence, unless and until necessary ingredients
of S.399, P.P.C. stood proved ---Prosecut ion had failed to prove the intention and knowledge of
accused person for committing the alleged offence ---Law did not restrict movement of any body
nor any time had been prescribed for such movement ---In the present case, in all probabilities the
prosecut ion story was highly doubtful and from doubt arising out of the prosecution story,
benefit of same should have been extended to accused which the Trial Court had failed, to do so -
--Said act of the Trial Court would amount to mis -exercise of jurisdiction ---Impugned judgment
was set aside and accused were acquitted and released.
Ali Nawaz and others v. The State PLD 1996 Kar. 146; 2006 PCr.LJ 1795; 2007 MLD 1760 and
2007 YLR 646 rel.
Hayatullah Khan Kasi and Obaidullah Qureshi for Appellants.
Zahoor Ahmed Shahwani, P.G. for the State.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---These appeals are arising out of impugned judgment
dated 6 -8-2009 passed by Additional Sessions Judge -VI, Quetta, whereby the appellants were
convicted under sections 399, 400 an d 401, P.P.C. and sentenced to suffer R.I for seven years
each with fine of Rs.10,000 each, in default whereof to further undergo S.I. for six months each.
Briefly stated facts of the case are that an F.I.R. No.20 of 2009 lodged with Police Station
Kuchl ak under sections 399/400/401, P.P.C., contending therein that on spy information, a raid
was conducted at graveyard wherefrom the appellants were arrested and on search TT Pistols .30
bore along with cartridges were recovered from their possession. After usual investigation,
challan of the case was submitted in Court of Additional Sessions Judge -VI Quetta for trial. The
prosecution in support of its case, produced five witnesses, in rebuttal, the appellants were
examined under section 342, Cr.PC. On conclu sion of case, the learned trial Court has convicted
and sentenced the appellants as mentioned hereinabove.
Learned counsel for appellants submitted that trial Court has not properly appreciated facts and
circumstances of the case. Prosecution has failed to prove ingredients of sections 399/400 and
401, PPC. The witnesses have not been able to prove case of prosecution, but still conviction
awarded to appellants is noting, but abuse of process of law, as such, the impugned order is liable
to be set -aside.
On the other hand learned P.G has vehemently opposed the appeals and has stated that the
prosecution witnesses have successfully proved case against appellants. The witnesses remained
firm to their depositions and have not been shaken despite lengthy cro ss-examination. The
judgment impugned is just and proper, as such the same is liable to be maintained.
I have heard learned counsel for the parties and have perused the record. Before going to discus
merits of the case, let in the first instance go throu gh the section 399, P.P.C. which is reproduced
herein below: ---
Making preparation to commit dacoity .-- Whoever makes any preparation for committing
dacoity, shall be punished, with imprisonment for life or with rigorous imprisonment for
a term which may extend, to ten years, and shall also be liable to fine.
Bare perusal of said section reveals that to constitute an offence under section 399, P.P.C.
intention and preparation is the basic ingredients, the basis of which one could be charged. On
perusal of statements of witnesses, none of them has stated a single word showing their personal
knowledge about the intention of appellants or preparation for commission of above said offence.
The evidence also indicates that no overt act has been shown on the pa rt of appellants so as to
prove their intention. The prosecution witnesses have simply relied upon the spy information. It
is important to note here that information simpliciter does not constitute any offence unless and
until necessary ingredients of abov e section stand proved, as has been held in a case titled Ali
Nawaz and others v. The State reported in PLD 96 Kar. 146, relevant portion is reproduced
herein below:
----S. 399 ---Preparation to commit dacoity ---Intention, an essential ingredient ---Proof,
what constitutes -Mere assembly of five or more armed persons at the place would not
show their intention to commit dacoity unless some overt act or some attending
circumstances are proved to support such intention.
Learned counsel for appellants has als o relied upon the judgments reported in 2006 PCr.J 1795;
2007 MLD 1760 and 2007 YLR 646.
After going through the evidence and material on record, I have considered the case on the
touchstone of above said case laws, as well as definition of section 399, the prosecution has
miserably failed to prove the intention and knowledge of appellants for committing the alleged
offence. As far as the contention of learned P.G that the appellants were found present in
graveyard in mid -night having un -licensed arm is s ufficient proof of their intention, is concerned,
I am not in agreement with his contention as law does not restrict movement of any body nor any
time has been prescribed for such movement.
It is a fact that the appellants were found in possession of ill egal arm for which they have already
been convicted, therefore, their attempt to escape from the place, might be the result of having
illegal arm in their possession and to save from arrest. In all probabilities the prosecution story is
highly doubtful, th erefore, any doubt arising out of the prosecution story, benefit of the same
should have been extended to the appellants which the trial court has failed to do so, thus, the act
of trial court amounts to mis -exercise of jurisdiction.
In view of what has been discussed herein above, I am inclined to accept the appeals, set aside
the impugned judgment dated 6 -8-2009, resultantly the appellants are acquitted of the charge,
they be released forthwith if not required in any other case.
H.B.T./21/Q Appeals accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.