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Criminal Revision No. 311 of 1976, decided on 3rd June 1976.

---S. 439-Evidence-Appreciation of - Complainant allegedly robbed of his gun at pistol point in broad daylight but first information report lodged with unexplained delay of 24 hours--- At trial neither prosecution witnesses examined nor alleged robbed gun recovered from accused to corroborate complainant's version Prosecution, held, failed to prove its case beyond shadow of doubt, in circumstances-Conviction and sentence set aside-Penal Code (XLV of 1860), S. 392.-[Evidence].

Siddiq Ahmad Khan for Petitioner.

Sardar Roshan Ali Sindhu for the State.

Date of hearing : 27th May 1976.

In this criminal revision brought under section 439, Cr. P. C. Muhammad Sharif petitioner has challenged his conviction and sentence of 2 years' R. I. and a fine of Rs. 200.

2. The facts of the prosecution case stated briefly are that on 26-9-72 Zahoor Ullah Khan complainant while carrying his licensed gun, was proceeding towards his dera with his bicycle, the petitioner and his compa nion, namely, Mansha came on mares. The petitioner threatened the complainant at his pistol point, whereas Mansha snatched the gun from him. During the nakabandi the police recovered the gun from the possession of Mansha. After the occurrence the complainant went to his dera, narrated the occurrence to his tenants and returned home, reaching there at night. On the following day at 12-30 p. m. be made the report. The distance between the place of occurrence and the Police Station is nine miles but the distance of the house of the complainant from the Police Station is very small i. e. about 2 furlongs.

3. Khushi Muhammad, Muhammad Yasin and Bashir Ahmad were cited as recovery witnesses as is evident from the recovery memo. Saghir Ahmad Khan and Muhammad Jamil Khan were cited as witnesses but against their names it is not mentioned what kind of evidence they had to give. The statement of Muhammad Jamil recorded under section 161 is on the Police file. He stated that after the occurrence both the accused passed near his house making fires in the air. The statement of Saghir Ahmad Khan recorded under section 161 is not on the record. The complainant has not named these two witnesses in the F. I. R. and in his statement. If Saghir Ahmad Khan was eye-witness of the occurrence, there is no reason why lie was not examined. Muhammad Jamil is alleged to have seen the petitioner and his companion soon after the occurrence making fire in the air, therefore, he should have been examined to corroborate the statement of Zahoor Ahmad Khan complainant. The examination of only one witness particularly the complainant, when other evidence is available is quite unsafe and the prosecution takes the risk of losing its case. The defence ought to be given adequate number to test the veracity of witnesses. If only one witness is examined his veracity cannot be tested. The delay of about 24 hours in making the report coupled with the fact that Saghir Ahmad Khan and Muhammad Jamil Khan were not examined makes the case doubtful. A broad daylight robbery was committed but this is very strange that the complainant re-acted very abnormally and remained silent for 24 hours. Normally he should have at once gone to the police for reporting the occurrence, if in reality he had identified the thieves. If he did not recognise the thieves, he had the required time to inquire from the neighbouring Abadi as to who could be the persons who had snatched his gun. This appears to be the reason that the F. I. R. was made with inordinate delay. No doubt un explained delay in the F. I. R. is not in itself a sufficient ground to make the case doubtful, but where time is required to falsely implicate a person or to consider, who could be the culprit, the inordinate delay in reporting the matter to the police is fatal to the case.

4. In these circumstances, it is highly doubtful to say that the complai nant had in reality identified the petitioner. A known person could not dare to snatch a licensed gun. Unknown persons may be believed to snatch away such a weapon thinking that since they were not known to the complainant, they would not be apprehended and the gun recovered from them: No doubt the complainant did not show any enmity with the petitioner, but it is not necessary. Since the gun was not recovered from the petitioner, there is no corroborative evidence against him. Even the gun was not got identified from the complainant in his statement. In his statement the complainant said that Mansha the companion of the petitioner was known to him and that he bad identified him at the time of occurrence, but he did not say so about the petitioner. Since it is doubtful that the complainant knew the appellant and had identified him at the time of the occurrence, holding an identification parade was necessary but it was not done.

5. The result is that the prosecution failed to prove the case beyond any shadow of doubt.

I, therefore, accept the revision petition and giving benefit of doubt acquit the petitioner. Release warrant be issued immediately.

Revision allowed.

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