1. ' HASAN FEROZ, J.---This judgment shall dispose of Criminal Jail Appeal No.78/2014 filed under section 410, Cr.P.C. On behalf of the appellant who being aggrieved and dissatisfied with the judgment dated 30-10-2013 passed by VIIIth Assistant Sessions Judge, Karachi (East) in Sessions Case No.512/2012 whereby the appellant was convicted under section 265-H(2), Cr.P.C. For an offence under section 392, P.P.C. And was sentenced to suffer R.I. For five (5) years and to pay a fine of Rs.30,000 in case of default of payment of fine, he shall suffer S.I. For one month, however he was extended the benefit of Section 382-B, Cr.P.C.
2. ' The brief facts necessary for disposal of instant appeal are that complainant Mirza Najaf Abbass lodged FIR on 17-3-2013 that he is residing at Jaffar Tayyar Society and on the same day while he proceeded from his house to Malir and in the way, petrol of his motorcycle was finished and he brought his motor cycle at nearest pump, but in the meanwhile two boys came there and both accused stopped their motorcycle out of them one who was riding the motorcycle took out pistol and other accused snatched his mobile phone Nokia by showing pistol by force from him and thereafter one dacoit fled away on his motorcycle and other ran away by foot. He made a noise for dacoit, dacoit and in the meantime police mobile reached there and he narrated the alleged story to police officer and also pointed out about the accused who ran away by foot, the police party followed the accused and arrested the accused. After inquiry the accused disclosed his name Atif Ali son of Juma Muhammad and the name of absconder accused as Ahmed son of not known. The police officer took personal search of accused and recovered one mobile phone and cash Rs.200 the same was identified by complainant. Hence this FIR was lodged.
3. ' The appellant has preferred this jail appeal from Central Prison, Karachi through Superintendent Central Prison, Karachi and it has been stated in the memo of the appeal that the trial Court has not considered the contradictions/discrepancies in the evidence of Prosecution nor taken into consideration the plea of defence/appellant. The evidence of the prosecution is full of contradictions and nothing was recovered from the appellant, the recovery has been foisted upon him furthermore the appellant/accused was apprehended in a false case and has been sentenced to suffer R.I. For five years and a fine of Rs.30,000. That Prosecution case suffers from material contradictions therefore, the Judgment of trial Court may be set aside and the appellant may be acquitted.
4. ' The learned A.P.G. Has vehemently opposed the submissions advanced by the appellant and contended that the trial Court has appreciated the evidence brought on record and the prosecution has safely brought the guilt of appellant at home, therefore, the appellant was convicted and further that the judgment of trial Court may be upheld.
5. ' I have heard the appellant (present in custody) in person, learned A.P.G. And also perused the record and R&Ps of the case. The record shows that the instant appeal has been preferred against the Judgment of Assistant Sessions Judge in the matter of conviction of 5 years against which an appeal may be preferred under section 408, Cr.P.C. Instead of section 410, Cr.P.C. However such error of mentioning of wrong section A would not come in the way of dispensation of Justice as this is a jail appeal moved by the convicted prisoner.
6. ' I have in my perusal the charge framed by the trial Court whereby the accused/appellant has been ascribed with role to have snatched one Nokia Mobile CE-0434 and cash amount of Rs.200 from complainant Mirza Najaf Abbass on the force of weapon whereupon evidence of the complainant is also in my perusal in which the complainant stated that fuel of his motorcycle has finished near Falak Naz at airport and after laying down the motorcycle he tried to restart the motorcycle suddenly two accused persons came from backside and pointed pistol on him and tried to snatch his cash amount. This P.W. Disclosed the incident to the police and pointed the accused persons who were trying to escape good. The police followed the accused persons and apprehended one accused while the other along with motorcycle succeeded to run away, police made search and recovered mobile phone and cash amount of the complainant/P.W.
7. ' I have in my view that the contents of the charge describes snatching on the force of weapon whereas the deposition of the complainant is vague about pointing of pistol upon him although he explicitly stated to have resisted.
8. ' I have in my view that in order to constitute offence under section 392, P.P.C. To carry away property it is to be seen that the offender, for that end, voluntarily causes or attempts to cause any person death or hurt or wrongful restraint or fear of instant death or hurt or of instant wrongful restraint. I have also in my view that the words "for that end" being the implied part of the statute of 392, P.P.C. Used in this section clearly mention that the hurt caused by the offender be with the express object of facilitating the committing of the offence in carrying away the property thus by pointing the pistol the accused persons have put the complainant under fear of threat of death however this threat on perusal of evidence departs when the complainant speaks that he resisted when the accused persons have snatched his mobile and the cash, however suddenly the arrival of the police and pointing of the accused persons who were making escape and the arrest of the one accused from whom mobile and cash amount was recovered is to be assessed on the scale of evidence corroborating the incident by other P. Ws .
9. ' I have in my view the statement of complainant recorded under section 154, Cr.P.C. Which speaks about the incident at 3:30 pm and after the entire ordeal lodging of FIR is at 3:30 pm so also it points towards motorcycle rider of taking out the pistol in the FIR while the person sitting on back snatching the mobile and cash is secured in this case. Although the FIR is not a substantive piece of evidence however the timing shown of the occurrence of incidence at 3:30 pm and lodging of FIR at 3:30 pm so also attributing pistol taken out by the motorcycle rider who has fled away from the scene on motorcycle and the person sitting at the back now accused/appellant in this case is shown to have snatched the property. The aspect of fear of instant hurt, death or wrongful restraint departs with the show of resistance by the complainant and that the material part of the incident whereby on the show of weapon the complainant was put to fear is also lacking in the circumstances whereas the complainant in the FIR lodged by him named the accomplice as Ahmed son of not known. I have also in my view Exh.5/C being the memo of inspection of place of occurrence. I have also in my view the statement of Asif Ali ASI who stated that the accused who has snatched the mobile phone has tried to run away by foot who was apprehended. I have in my perusal the statement of Shehzad Nazir HC who has almost also narrated the same story except the change of timing of incident as 1525 hours and this P.W has further added in the prosecution story that the complainant Mirza Najaf was holding the accused Atif with his hand, the apprehended accused/appellant that this accused has snatched his mobile phone Nokia and cash amount of Rs.200 along with his companions who has absconded away and at 1530 hours ASI Hashim made personal search and recovered mobile phone and cash amount of Rs.200. Another important witness is Muhammad Hashim Head Constable who has narrated more different to that of complainant and two other witnesses viz "during patrolling when they reached at service Road near Falak Naz Plaza suddenly two persons came near to him and disclosed their names as Najaf Abbass and Asif Abbass who told that two accused persons after snatching mobile phone and cash amount of Rs.200 on the force of weapon are going towards, for which they chased the accused persons and on pointation of complainant apprehended one accused while another accused succeeded to runaway". This witness also introduced absconder accused as Kamran alias Kamoo.
10. ' From the perusal of depositions of P.Ws it transpires that P.W-1 Mirza Najaf Abbass speaks of running away of two accused and apprehending of one accused who was sitting at the backseat of the motorcycle. The accused who put the complainant under the fear of instant death on the show of weapon has fled away. P.W.2 says that the complainant fell short of petrol of his motorcycle went to service road Falak Naz Plaza suddenly two accused persons riding on one motorcycle stopped him and inquired about the motorcycle whereupon the person driving the motorcycle pointed the pistol upon complainant and the person sitting at the back snatched mobile phone, the person on motorcycle run away and the accused who snatched the mobile run away on foot and was apprehended. The third P.W Shehzad Nazir speaks that at 1525 hours Mirza Najaf was holding the accused Atif with his hand who disclosed that the said accused has snatched his mobile phone and cash. The fourth P.W. Has further added to the prosecution story by saying that two persons came near to him here in the prosecution story one more person by name Asif Abbass has been introduced along with Najaf Abbass who told him that two persons after snatching the mobile and cash on the force of pistol are going towards, who were chased on the pointation of the complainant and apprehended one accused while the other ran away.
11. ' I have in my consideration that the learned Trial Court has not taken into consideration the glaring improvements and contradictions arriving between each of the witnesses as has been discussed above that in order to constitute offence under section 392, P.P.C. Fear of instant death, hurt or wrongful restraint is necessary to meet the end for constituting offence under section 392, P.P.C. Of which punishment is prescribed under section 392, P.P.C. The trial Court has not taken into the consideration the essence of law whereupon facts forming nexus between the offence are to be assessed on the scale of evidence. The evidence arising over the record clearly depicts improvement upon improvement leading to contradiction in prosecution version and thus a D line is to be drawn whereby the facts on the scale of evidence need to be assessed taking into consideration the glaring contradictions arriving one after the other. The evidence also do not show that pistol has been pointed upon him by the present accused as the evidence has been taken down in plural without mentioning that pistol has been pointed by whom. The evidence also speaks that he resisted but the accused persons snatched the mobile and cash and tried to run away after seeing police.
12. ' I have in my consideration the citation of this Court as reported in 2013 YLR 543 wherein it has been held that a single infirmity creating reasonable doubt in a prudent mind regarding truth of the charge was sufficient to give benefit of doubt to the accused.
13. ' I have also in my consideration the case law as reported in 2009 YLR 1598 wherein it has been held that the rule of criminal jurisprudence to give the benefit of doubt to the accused, is much more than a mere rule of law as said rule is rule of prudence which no man E ought to and no Judge acting in accordance with provisions of Qanun-e-Shahadat Order, 1984 can ignore and which was vigorously enforced by Islam. It is settled principle of criminal administration of justice that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising out in the prosecution case is to be resolved in favour of the accused.
14. ' I have also in my view the case law of this Court as reported in 2009 PCr.LJ 1119 wherein it has also been held that it is, well-settled law that even a slightest possible doubt is created in the case of prosecution, that must go in favour of the accused. It is, also well settled that when the prosecution failed to establish the case against the accused, then for dispensation of justice, the statement of accused recorded under section 342, Cr.P.C, is to be looked into and to be believed in totality as observed by the Hon'ble apex Court in the case of Ashiq Hussain alias Muhammad Ashraf (supra).
15. The case of the prosecution was full of contractions on various points particularly the manner in which the incident witnessed by the P. Ws.
16. ' The plea of the accused that P.W. Muhammad Hashim demanded Rs.25,000 from his family that he was falsely implicated in this case although not substantiated in the statement of accused however such question was put during the cross-examination so also I have in my consideration the show cause notices issued by trial Court for procuring the personal search property from P.W.
17. Muhammad Hashim reflects doubt as to the implication of the appellant/accused such as the introduction of Mirza Asif Abbass along with the complainant Najaf Abbass put dent to prosecution story whereby gives rise to the benefit of doubt in favour of the appellant. The learned Trial Court has to look into every piece of evidence forming part of transaction to constitute offence while delivering judgment of conviction whereas in presence of contradictions and dis junction in the evidence on record whereby the offence under section 392, P.P.C. Has not been proved beyond shadow of doubt on the scale of available evidence, I therefore, set aside the judgment of conviction and sentence and by extending the benefit of doubt acquit the appellant of the charged offence. The appellant is presently confined in Central Prison; the Superintendent Central Prison Karachi is directed to release the appellant forthwith, if he is not required in any other case.
18. In the terms of above Criminal Jail Appeal is allowed.