' This appeal is directed against the judgment dated 8-8-1992 passed by the learned 1st Additional Sessions Judge, South Karachi, whereby the appellant was convicted for offence under section 397, P.P.C. And sentenced to suffer R.I. For seven years and fine of Rs,20,000 in default to undergo R.I. For one year more. He was ordered to pay compensation of Rs,5,000 to the injured complainant under section 544-A, Cr.P.C.
2. The facts giving rise to this appeal are given in F.I.R. No,42/84, registered at Railway Police Station, Karachi City, English translation whereof is as under:-- "I, Shaukat Hayat son of Umar Hayat N.K. No,6870492-116 R.M.P. Exmarkation Headquarter, Kimari hereby state that on 4-7-1984, I went to Manghopir Railway Station in order to book the cement. I got the job completed at 9-00 p.m. And departed therefrom by a local train. I was in plain white dress. I was reading a Digest. When the train reached the Baldia Station, about six persons boarded the train, one of those six persons, asked me, at the dagger point to hand over what was in my possession. Meanwhile another one of them snatched away my Ricoh automatic wrist watch while the other one tore off the right pocket of my shirt with his dagger and took away the sum of Rs,450 contained therein alongwith official papers, my pay book and the Identity Card. Afterwards they gossipped among themselves to throw me down the train. In order to save myself I caught hold of the door handle of the train. At this one of them assaulted my right arm while the other assaulted the left arm with the dagger and inflicted injuries on me. I started bleeding. In the meantime, the train arrived at the Lyari Railway Station and those persons having deserted me started running. I started shouting, one of the accused persons running away wearing Burqa was caught hold of by the public. The people showed me the accused, I identified that he was the same person who had snatched my wrist watch and hit my hand. Afterwards the people told that he was a barber and was running a barber shop in the Muhammadi Colony. Thereafter some of his supporters came on the spot and took alongwith him. One of, the people assembled on the scene, took me to Arambagh Police Station in a rickshaw wherefrom I have come to the hospital. The incident took place in the train in motion at 21-45 hours. I report for necessary action. I can identify the accused persons if shown to me."
3. After registration of the case Syed Ali Anwar, S.I./S.H.O., Railway Police Station, Karachi City, arrested the appellant on 5-7-1984. On 6-7-1984 he searched the house of the appellant. On the same day Mst. Bashira produced a Burqa. On the same day he inspected the Bogi and found blood stains there. On 12-7-1984 he put the appellant to identification parade to witnesses before Special Magistrate, Karachi. However, after usual investigation the appellant was challaned before the Court of the learned 1st Additional Sessions Judge, Karachi South. Charge under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was framed against the appellant whereto he did not plead guilty and claimed trial.
4. The prosecution, therefore, examined:- P.W.1 Muhammad Lubya, A.S.I.: ' He recorded the F.I.R., prepared injury report of injured complainant Shaukat Hayat. In his presence Syed Ali Anwar, S.H.O. Arrested appellant Wall Muhammad. In his presence a 'Burqa' was produced by Mst. Bashira.
' P.W.2 Muhammad Siddique, Constable: ' He accompanied A.S.I. Lubya to hospital 'where statement of complainant Shaukat Hayat was recorded.
' P.W.3 Muhammad Miskeen, Carpenter: ' He saw that some persons had caught hold of the appellant near a mosque.
' P.W.4 Hawaldar Muhammad Nazeer: ' He is a formal witness.
' P.W.5 Muhammad Rustam: ' He is a formal witness.
' P.W.6 Faiz Muhammad. Constable: ' He saw the appellant having been caught hold of by some persons.
' P.W.7 Syed All Anwar, S.I.: ' He is Investigating Officer.
' P.W.8 Abdul Ghaffar: ' He saw that the appellant was clad in Burqa and apprehended by some people.
' P.W.9 Muhammad Ali: ' He is a formal witness.
' P.W.10 Ali Muhammad. H.C.: ' He is a formal witness.
' P.W.11 Shaukat Hayat: ' He is the complainant and main witness.
' P.W.12 Dr. Imtiaz Hussain Shah: ' He examined the complainant Shaukat Hayat.
' P.W.13 Allah pitta: ' He is a formal witness.
' C.W.1 Muhammad Lubahay, A.S.I., C.W.2 Muhammad Anwar, Head Constable, C.W.3 Muhammad Rafique, Constable, C.W.4 Manzoor Hussain, H.C., C.W.5 Muhammad Rafique, H.C. And C.W. 6 Bashir Hussain Shah, S.I. Are also formal witnesses.
5. In his statements recorded under sections 342 and 340(2), Cr.P.C. The appellant denied the allegation and claimed innocence. No witness was examined in defence. However, the learned trial Judge found him guilty for offence under section 397, P.P.C. And convicted him for the same as mentioned hereinabove. Hence this appeal.
6. Sardar Muhammad Ishaque, Advocate appeared for the appellant and Shaikh Aziz-ur-Rehman, Advocate, appeared for the State and did not support the conviction of the appellant.
7. However, with the assistance of the learned counsel for the parties I have gone through the statement of P.W.7 Syed Ali Anwar. He has admitted that nothing was recovered from the appellant during the investigation. He has further admitted that P.Ws. Muhammad Miskeen, Rustam, Fiaz Muhammad, Abdul Ghaffar and Masood Rchman in their statements had not implicated the appellant. It is further alleged by the prosecution that the appellant was arrested by the people in a `Burqa'. But the evidence produced by the prosecution shows that the `Burqa' was produced by Mst.
Bashiran from her house. There is thus clear contradiction regarding production of `Burqa'. Besides, there is also clear-cut contradiction regarding apprehension of the appellant. Evidence of the private and police witnesses do not reconcile with each other. Besides, identity of the appellant is also questionable. In such situation the learned counsel for the State rightly did not support the judgment passed by the learned trial Judge and opined that the case was full of contradictions and doubts. I am, therefore, inclined to extend benefit of doubt in favour of the appellant, accept his appeal, set aside his conviction and sentences recorded by the learned trial Judge on 8-8-1992 and acquit him of the charge. He be set at liberty forthwith if not required in any other case.