2023 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This criminal revision petition is directed against the judgment dated 28.08.2020 (the "impugned judgment") passed by the learned Judicial Magistrate, Bhag (the "trial Court"), and the judgment dated 05.10.2020 passed by learned Sessions Judge, Sibi (the "appellate court") whereby the conviction and sentence awarded to the petitioner by the trial court under section 392, P.P.C. for three years with fine of Rs.10,000/-, in default whereof he shall further suffer six months' SI, was upheld by the appellate court.

2. The relevant facts as narrated in the FIR are that on 04.05.2020 the complainant Muhammad Osama lodged an FIR No.11/2020 with PS Bhag, alleging therein that on the stated date at about 10:00 p.m, he was present in the street of his house, when two persons boarded on motorcycle came there, out of whom one was equipped with hunter forcibly snatched his mobile worth of Rs.10,000/-, and tried to escape but the one who snatched his mobile fell down, meanwhile constable Sajid Ali reached there and chased the accused and while apprehending him recovered the mobile from him.

3. After usual investigation and full dressed trial, the learned trial Court convicted and sentenced the petitioner in the aforesaid terms, while the appeal against the said conviction was also dismissed by the appellate Court. Hence this petition.

4. Heard the learned counsel for the petitioner and have perused the record with their able assistance. The perusal of record reveals that on 04.05.2020 the FIR Ex-P/3-A was registered on the written application Ex-P/1-A of complainant. The investigation was entrusted to the PW-3, who conducted the investigation and prepared recovery memo of mobile as Ex-P/2-A, site plan Ex-P/3-C and after completion of investigation submitted challan. The prosecution case revolved on the statement of PW-1, who reiterated the contents of the FIR, stated that on 04.05.2020 at about 10:00 p.m. he was present in the street of his house, when two persons boarded on motorcycle came there, out of whom one was equipped with hunter forcibly snatched his mobile worth of Rs.10,000/-, and tried to escape but the one who snatched his mobile fell down, meanwhile constable Sajid Ali reached there and chased the accused and while apprehending him recovered the mobile from him. The PW-1 alleged that his mobile was forcibly snatched by the accused/appellant but in Ex-P/1-A neither the complainant mentioned the mobile number nor during investigation produced any sort of evidence to establish his ownership. The PW-3 Investigating officer did not bother to confirm from the concerned company franchise whether the mobile was in the name of the complainant or not. PW-1 and PW-2 admitted the occurrence took place at night, it cannot be believable that the co-accused leave his companion alone and runaway despite the complainant was not armed. The complainant/PW-1 submitted an affidavit wherein he exonerated the accused at bail stage and confirmed the contents of the affidavit but during trial the complainant resiled from the affidavit. Where a person does not bother to resile from an affidavit, how without corroboration of statement of such witness the conviction can be awarded.

5. As per prosecution the appellant and absconding accused were armed with hunter. The trial court convicted and sentenced the appellant under section 392, P.P.C. for committing robbery whereas the robbery defines in section 390, P.P.C. It would be relevant to reproduce section 390, P.P.C. as under:

390. Robbery: In all robbery there is either theft or extortion. When theft is robbery: Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offence, for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. When extortion is robbery: Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

6. The complainant/PW-1 alleged that at the time of alleged incident the accused along with co-accused were armed with hunter but the complainant neither alleged that the accused were armed with weapon or caused any injury to him. In order to constitute offence under section 392, P.P.C. fear of instant death or of instant hurt, or of instant wrongful restraint is necessary to meet the end of constituting offence under section 392, P.P.C. The prosecution evidence speaks no resistance on the part of the complainant. Reference can be made to the case titled Rauf v. The State 2020 MLD 290, whereby it has been held as under: "

12. First be taken first. The manner of arrest through specific IME (claimed to be robbed one) was a material circumstance but neither said official of CPLC was examined nor the record through which arrest of accused became possible was brought on record. This would mean that the prosecution never safely proved that the mobile phone, recovered from accused, was owned; used by complainant; robbed from complainant and was found in use of the accused. Again failure of prosecution would result same effect that it would be prosecution which has to share consequences of its own negligence. The view is guided by principle, so enunciated in case of Azeem Khan 2016 SCMR 274 whereby similar situation and its effects were discussed with reference to accused here situation is similar but reference is relating to complainant which would not prejudice the analogy.

14. Further, it was also admitted by the complainant in his cross that: "I had purchased mobile phone from Sarena Market at Sakhi Hassan. It is correct to suggest that I have not produced that shopkeeper as a witness in this case." The prosecution however never attempted to produce any receipt of shop from where mobile phone was purchased nor examined such shop-keeper which (evidence) was otherwise necessary for proving said fact. I would further add that model of allegedly recovered mobile phone was never claimed to be rarely available in market hence in such eventuality it was never safe to hold conviction on such foundation which, as discussed above, was never safely proved. Reliance is made on the case of Muhammad Nawaz and others v. State and others 2016 SCMR 267 wherein it is observed as: "(f) During the occurrence, certain gold ornaments, identity card and bag of the complainant were snatched by the appellants. During the course of investigation some articles allegedly robbed during the occurrence were allegedly recovered at the instance of the appellants. No description of the robbed articles was given by the complainant in the FIR. The complainant whose ornaments were allegedly robbed during the occurrence and who allegedly identified the same, during her cross-examination, affirmatively responded to the suggestion that the gold ornaments referred above could be purchased from the goldsmith's shop. Therefore, it is highly unsafe to rely on the evidence of recovery, which even otherwise is a corroborative piece of evidence and relevant only when the primary evidence i.e ocular account inspires confidence."

7. It is settled principle of Criminal Administration of justice that the prosecution is bound to prove its case beyond reasonable doubt, when a single doubt appears in the evidence of prosecution its benefit must go to accused as matter right not grace. Reliance is placed on the case of Khamiso v. State PLD 2017 FSC 98, wherein it has been held as under:- "

4. In the light of above discussion it appears that prosecution has failed to discharge its burden satisfactorily and there appear major lacunas and contradictions in the evidence brought on record. It is settled law by this time that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of Tariq Pervez v. State (1995 SCMR 1345)."

8. Thus, in view of above discussion it can safely be concluded that the conviction and sentence recorded against the petitioner is not sustainable, therefore, the impugned judgment dated 28.08.2020 passed by learned Judicial Magistrate, First Class Bhag and judgment dated 05.10.2020 passed in appeal by the Sessions Judge, Sessions Division Sibi are hereby set aside. This petition is, therefore, accepted and the petitioner is acquitted of the charge vide FIR No.11 of 2020 registered with PS Bhag, under section 392 read with 34, P.P.C. He being in custody be released forthwith if not required in any other case. These are the reasons of my short order dated 29.10.2020. SA/263/Bal. Petition accepted.