1. ' MRS. YASMEEN ABBASEY, J.---Facts leading to this appeal are that per statement of complainant on 25-5-2001 when he along with his family in car bearing Registration No.ABU-834 was going towards Gizri for shopping and as soon at about 10-30 p.m. He reached at Marine Chowrangi and stopped the car because of red signal, two persons came to his car and on pistol point snatched key of his vehicle. They directed the complainant to be silent and attempted to snatch the vehicle.
2. On their direction when complainant came out of the car soon one police mobile came there, complainant asked for help. On seeing police mobile one person escaped while the other who was towards complainant was arrested by police along with .30-bore pistol loaded with magazine containing 5 rounds. He disclosed his name as Muhammad Abid and name of absconding accused as Kamran Ahmed.
3. ' Prosecution examined in all four witnesses. On the basis of evidence produced by prosecution appellant was convicted under section 393, P.P.C. And sentenced to suffer R.I. For two years with fine of Rs.5,000 and in default thereof to undergo R.I. For six months. He was further convicted under section 398, P.P.C. And sentenced for 7 years' R.I. With fine of Rs.5,000 and in default thereof to suffer further R.I. For six months. Both sentences to run concurrently with benefit of section 382-B, Cr.P.C.
4. ' Being aggrieved with the judgment, this appeal has been preferred.
5. ' It is argued by learned counsel for the appellant that lot of contradictions are appearing in the statements of prosecution witnesses, even the complainant's statement does not appear to be trustworthy as both his statement under section 154, Cr.P.C. And on oath differ to each other.
6. Contradictory versions make the case of prosecution doubtful. In his first statement complainant deposed that while he was going along with his family an attempt to snatch his car was made, whereas in his statement on oath he had shown himself to be all alone when incident took place.
7. He has further deposed on oath that appellant came on the driving side and pushed him to adjacent front seat and sat on the driving seat, and other accused seated on the back side of the vehicle and were continuously abusing him. In the meanwhile police mobile came there and on seeing police mobile he got down from the car and asked for help. According to him the person sitting on the back seat of the car by opening the door escaped while the other one who was sitting on the driving seat was arrested. Though contents of memo. Of arrest are silent that whether appellant was arrested from inside the car or from outside the car. However, P.W.2 Anzila Khan who was with the patrolling party and helped the complainant at the place of incident had shown arrest of the appellant from inside the car. P.W.3 Qutub Din has also supported the version of P.W.2 Anzala Khan that when they went on the call of complainant, appellant Abid after snatching key of the car was sitting on the driving seat, and on seeing police party attempted to escape. Statement of both P.W. Anzala Khan and SIP Qutub Din though corroborates to each other but in view of inconsistent pleas taken by the complainant discussed above, statement of these two witnesses have also to be read with conscious and care. In his 154, Cr.P.C. Statement complainant has not shown any attempt of snatching or taking out of key from the switch, he has just stated that by pushing him on the front rear side appellant seated on the driving seat, while in his statement on oath he deposed that first appellant on gun point had taken out key and asked him to get down from the car and on his direction he came out of the car. In view of contradictory statements of complainant on each and every aspect learned counsel for the appellant has referred 1999 SCM R 1220 (Muhammad Khan and another v. The State) wherein it is observed that:-- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused."
8. It is also settled principle of law that if there are circumstances, which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right, which apparently, as discussed above is appearing in the present case.
9. Learned counsel has further pointed out that though recovery of crime weapon has been shown from the possession of this appellant but admittedly neither it was sealed at the spot nor was produced and got identified through prosecution witnesses. Fact of not sealing the property has been admitted by P.W.3 SIP Qutub Din in his cross-examination that it is correct that I have not sealed the case property at spot". Contents of memo. Of arrest are also silent that whether case property was sealed at the spot. However, P.W.3 SIP Qutub Din had identified pistol and two magazine and alive bullets present in Court to be same which were recovered from appellant Abid.
10. Recovery of pistol and live bullets may be an important piece of evidence, but still non-production of any case property i.e. Car, was never produced in Court for its identification through P.W.1. Pistol and bullets are not shown in challan as case property.
11. Thus in absence of both the properties conviction of appellant is an arbitrary decision of the learned Trial Court. In a case under section 398, P.P.C., which relates to the robbery, prosecution has to prove that while committing offence the offender causes or attempts to cause to any person death or hurt or put him in the fear of instant death or hurt.
12. Indeed weapon used in commission of offence was got identified through one of prosecution witnesses, but non-sealing of weapon at the very place of recovery makes it suspected and such recovery cannot be accepted with any degree of safety.
13. ' Thus in view of evidence produced, case of prosecution appears to be highly doubtful and under these circumstances the guideline provided in 1992 SCM R 96 (Yar Muhammad and 3 others v. The State) would be material to reproduce, which shows that:- "It is a well-settled principle that where there is any discrepancy in the evidence of the prosecution or if it requires some clarification or explanation then the prosecution must explain and clarify the same failing which the benefit will go to the accused."
14. In the present case admittedly for all the discrepancies and contradictions appearing in the statement of prosecution witnesses from the date of registration of case till its final disposal prosecution has not explained any of them, merely implicating the appellant by proving his presence at the place of incident through complainant and two police personnel with no independent witness is not reliable piece of evidence. Statement of complainant on this account also is contradictory as in his examination-in-chief he has deposed that when attempt of robbery was committed only his car was at the signal but in his cross-examination truth came out from his mouth that "it is correct that traffic was also passing from the road at the place of incident". In spite of that not a single independent witness was called by the Investigating Officer from the place of incident to support prosecution version.
15. So far as the other culprit said to be present in company with the appellant according to P.W.4.
16. Raja Sadaqat Hussain was released for want of evidence against him. In view of statement of P.W.4 Raja Sadaqat Hussain case of prosecution further becomes doubtful because admittedly after arrest of absconding accused no identification parade was held.
17. In view of foregoing reasons I am of the view that prosecution has not been able to prove the guilt against the appellant, the evidence as produced is full of contradictions.
18. ' Above are the reasons of my short order announced on 30-10-2007, whereby, the appeal of the appellant was allowed and he was acquitted from the charge.