1988 P Cr (PLP)

2‑A. After investigation, the challan was submitted in the Court. The trial Court framed the charge under section 397, P.P.C. against him. He pleaded not guilty.

3. To prove its case, prosecution produced 8 witnesses. Muhammad Aslam P.W.1 while supporting the prosecution case, stated that at the eventful time, when he was getting down from the bus Riaz Hussian appellant removed Rs.40 from his pocket and when he tried to apprehend him he took out a knife and caused 3 injuries on his person. Ashiq Ali P.W. 2 and Muhammad Yousaf P.W.3 claiming to be the eye‑witnesses of the occurrence have supported the Statement of Muhammad Aslam P.W.1 in material particulars. The appellant /accused did not cross‑examine the complainant and other eye‑witnesses although opportunity was given to him. Dr. Muhammad Ajmal, medically examined Muhammad Aslam P.W.1. He found 3 simple injuries caused by sharp‑edged weapon on his person. Muhammad Riaz P.W.6 stated that Riaz Hussain appellant alongwith a knife was produced before him by the complainant and he took him to the police station. Abdul Rehman S.I. P.W. 8 stated that Riaz Hussain appellant was produced before him by Muhammad Riaz P.W.6. He arrested him. He also took into possession Rs.40, the stolen property, vide memo. Ex.P.B. and knife Ex.P.2 allegedly used by the appellant in the occurrence, vide memo. Ex.P.C. The rest of the evidence is of formal nature.

5. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised plea of false implication. He did not produce any evidence in defence.

6. Since the appeal has been filed through Jail, therefore, I have gone through the evidence with the assistance of Sh. Ehsan Ahmad, the learned counsel for the State. I feel that the prosecution case and its evidence, accepted at its face value, it is not possible, p under the law to maintain the conviction of the appellant recorded by the trial Court. The relevant law may be reproduced advantageously: Section 390, P.P.C. In all robbery there is either theft or extortion. Theft is 'robbery' if, in order to the committing of theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, 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. 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, or 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. Explanation. The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint." Section 392, P.P.C. "Whoever commits robbery shall be punished with rigorous imprisonment for a term which (shall not be less than three years nor more than) ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." Section 397, P.P.C. "If, at the time of committing robbery or dacoity, the of ender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." From the examination of the aforesaid provisions of law, it is very much obvious that the theft would be robbery if in order to committing of the theft or in committing or in carrying away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death, or hurt, etc. but in the instant case, it has not been stated that the appellant had caused injury to the complainant in order to committing of the theft or in committing theft or in carrying or attempting to carry away property obtained by the theft. Instead, the prosecution case is that when the complainant tried to apprehend the appellant after the commission of theft, the latter took out knife and inflicted injuries. Furthermore, offence under section 397, P . P . C . simply enables the Court to impose higher punishment in the situation given therein and this section has to be read with sections 392/394 and 395, P.P.C. Since in the case in hand no charge under section 392/394, P.P.C. was framed, therefore, the conviction under section 397, P.P.C. alone could not be recorded by the trial Court. For what has been said above, the appeal is accepted, the conviction and sentence under section 397, P.P.C. is set aside. He shall be released forthwith, if not required to be detained in any other case. M.Y.H./R‑62/L Appeal allowed.