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Criminal Appeal No. 282 of 1978, heard on 4th June,'1979.

--‑‑Ss. 392, 397 & 458‑Robbery‑Lurking house‑trespass‑Benefit of doubt‑Evidence, appreciation of‑One tainted piece of evidence Cannot corroborate another tainted piece of evidence‑Reasons given for inordinate delay of 14 hours in registration of F. I. R. not satisfactory‑Admittedly all eye‑witnesses, mashir, and complainant related inter se and their statements full of irreconcilable inconsis tencies‑Many co‑villagers coming to spot on hearing alleged gun re ports and many others accompanying tracking party but none examin ed by prosecution‑Injuries sustained by accused not of nature as to give rise to such excessive bleeding as to last for 3/4 hours leaving behind trail of blood over 7/8 miles‑Possibility that incident took place in some other manner but concealed by complainant party and a different story put up, not excluded‑Mere fact that accused failed to explain satisfactorily their injuries; held, would not ‑ entitle prosecution to any * advantage nor shift burden of proving its case beyond doubt on defend‑Accused given benefit of doubt and their convictions and sentences set aside, in circumstances. [Robbery‑Benefit of doubt‑Burden of proof].

Aftab Ahmad for Appellants.

Murtaza Hussain for the State.

Dates of hearing : 3rd and 4th June, 1979.

Appellants Imam Bux son of Fauji and Qaim son of Wazeer have filed this appeal against the judgment dated 26th September, 1978 of learned IInd Additional Sessions Judge, Jacobabad. whereby they have been convicted for offence under section 458, P. P. C. and sentenced to R. I. for five years and a fine of Rs.1,000 each, in default of the payment whereof R. I. for one year more and under section 392 read with section 397, P. P. C. sentenced to R. I. for seven years and a fine of Rs.1,000 each in default R. I. for one year. They were tried alongwith their co‑accused Siddique s/o Ali Murad, who was given benefit of doubt and acquitted by‑ the trial Curt vide the same judgment.

Shortly stated prosecution case is that on the night of incident L e. 3rd November, 1975 complainant Pandhi was sleeping in his house in the cattleshed in village Nihal Khan Bakhrani taluka Thu], when after mid night he woke up on the noise of movement of cattle and found four thieves removing his pair of bullocks. He raised cries which attracted to the spot his relatives' namely Madad, Behram and Mola Bux. From them Behram flashed his torch in the light of which thieves were identified to be the two appellants, named above and Siddique s/o Ali Murad and Jogi s/o Amir Bux, all by caste Banglanies, who were previously known to the eye‑witnesses. It is further the case of the prosecution that thieves threatened the witnesses not to come near and as they were armed with guns, they opened. fire and in reply eye‑witnesses Madad and Maula Bux also fired shot from their guns at the thieves, upon which the thieves left the pair of bullocks and ran away. Having retrieved the bullocks the complainant party went to sleep and in the morning checked the vardat. They found blood trail and footprints which they followed alongwit1 other persons., Footprints were lost after some distance but blood tdok them , to the' house of appellant Imam Bux at a distance of about sik miles from the spot. They found appellant Imam Bux lying injured 4n his house; whereafter complainant Pandhi went to police station Thul, where his F. 1. R. was registered at 2 p. m. on 3rd November 1975. Distance between spot and police station is .six miles. S. H. O. Mohammad Parial after recording F. I. R. inspected the place of occurrence which was pointed out by the complainant. He saw the place where cattle was tethered in the house of complainant. He saw the place where appellants were injured in the firing, it was about 10 paces away from the house of complainant. He also saw trail of blood at the vardat. He prepared such mashirnama. He recorded statement of Behram and Madad. Behram produced a torch, which S. H. O. secured vide mashirnama and returned to the complainant on his personal bond. Then he followed the trail of blood and reached the house of appellant Imam Bux, who was found in injured condition. S. H. O. arrested him and sent him for medical treatment and certificate. On 6th November, 1975 he arrested Qaim, Jogi and Siddique from village Bachro. Out of them Qaim was found injured and sent to the doctor for medical treatment and examination. On 14th November 1975 he got statement of P. Ws. Maula Bux, Bahram and Madad recorded under section 164, Cr. C. P. on 18th November, 1975 after completion of the investigation he presented challan in the Court.

Prosecution examined seven witnesses in support of its case. P. W. I Pandhi complainant, P. W. 2 Madad, P. W. 3 Bahram and P. W. 5 Maula Bux are eye‑witnesses. P. W. 6 Bakir is mashir, who has attested mashirnamas of vardat and production of torch, bullocks and arrests. P. W. 7 Mohammad Parial S. H. O. has investigated the case. P. 'W. 4 Dr. Mohammad Ali examined injuries of appellant Imam Bux on 3rd November 1975, which were found at three places i.e. left thumb, left forearm and left gluteal region. These injuries were declared to be simple in nature caused by discharge of firearm such as gun. On 6th November 1975, this doctor examined appellant Qaim and found six pellet injuries on different parts caused by firearm such as gun. He declared these injuries to be simple in nature.

Appellants when examined under section 342, Cr. P. C. denied all prosecution allegations. About the injuries both stated that they received the same from one Mawali, who had fired at them.. Imam Bux stated further that he was arrested at the police station and was found to be injured. Qaim stated that he and Imam Bux were injured by Mawali at the instance of Nihal and that same Mawali, had filed a case against him under section 307, P.. P. C. in which he was acquitted. Both proclaimed innocence and false implication due to enmity of Nihal. Appellants led no defence.

The learned counsel for the appellants has strongly criticised the evidence of prosecution as grossly sufficient and wanting in quality and quantity to sustain conviction in this case. He contended that story of incident ‑as narrated by the eye‑witnesses is highly improbable and identity in the light of torch is wear type of evidence and cannot be relied upon. Prosecution evidence has been examined in the light of contentions of the learned Advocates appearing for each side. It is the case. of the prosecution that complainant Pandhi woke up on the movement of cattle and found four thieves taking away his pair of bullocks so he raised cries. Now if the thieves were armed with guns as claimed by prosecution then what prevented them from firing at the complainant at the very initial stage, when he, woke up and raised cries. Secondly it is contended that in the ordinary bourse at such time when complainant woke up and raised cries it is expected that thieves would leave the pair of bullocks and escape, if they did not want any trouble and conversely if they wanted bullocks at any cost, then they would shoot at the complainant at the very first opportunity when he woke up and raised cries to attract the attention of others. On the other hand the case of the prosecution is that after hearing the cries of the complainant, the thieves did not do anything but simply waited for other witnesses to come and consequently three witnesses namely Madad, Maula Bux and Bahram came to the spot. From them the first two named were armed with guns and Bahram came with his torch. Normally it would take some time for a person, who is asleep to wake up on hearing cries, take up his gun and cartridges and come out from his house. In this case when these witnesses arrived at the spot, the thieves had gone hardly ten paces from the house of the complainant as mashirnama of vardat shows bloodstains at a distance of 10 paces from the house of the complainant. Even if these witnesses were close‑neighbours, it would take some time longer than that. In any case it is further the case of the prosecution that after the arrival of these three eye‑witnesses at the spot, the thieves still waited till P. W. Bahram flashed his torch, in the light of which they were duly identified by all the witnesses including complainant and then threatened these witnesses not to come near else they would fire and infect they fired at the witnesses who took positions and P. Ws. Madad and Maula Bux fired from their guns at the thieves, who became injured left bullocks and ran away: It is contended on behalf of the appellants that‑ if this story be deemed as true then the person who flashed the torch can be the safest target for the thieves to fire at but in this case none of witnesses gets injuries although so many shots were fired by the thieves. in this context let us see what the witnesses have to say. P. W. I complainant Pandhi has deposed that on' his cries P. Ws. Madad, Bahrain and Maula Bux came to the spot and they‑all chased the culprits. After covering 20 paces from his house the culprits challenged them not to come near otherwise they would be murdered. P. W: Bahram flashed the torch and then both parties, opened fire. He identified in the light guns torch appellants Qaim and Imam Bux having guns while Siddique and Jogi were armed with hatchets. Complainant has further stated that P. W . Madad had a single barrel gun while P. W. Maula Bux had a double barrel gun. They had taken defensive position that is how they were unhurt. Accused were escaping therefore some of them received injuries. P. W. 2 Madad has deposed that P. W. Bahrain had flashed his torch at the accused and he identified the present appellants Imam Bux and Qaim carrying guns and Siddique and Jogi having hatchets. The accused opened fire and they (witnesses) took position on the ground and fired in return. In the cross‑examination ‑ this witness faltered and stated that it was a dark night and they (witnesses) had fired at accused while standing and the accused also fired at them in the same position. P. W. 3 Bahram has deposed that on hearing cries of Pandhi, he took up his torch and went outside. He saw P. Ws. Madad and Maula Bux with guns. They saw Pandhi following four accused taking away a pair of bullocks. Accused challenged them not to approach near else they would be murdered. At this stage he flashed his torch at the accused and they opened fire P. Ws. Madad and Maula Bux also fired in return. In cross‑examination this witness P. W. Bahram has stated that P. Ws. Madad and Maula Bux had fired one shot each. Accused were at a distance of 20 paces when they were fired at. They (witnesses) took position behind a heap. First accused party fired at them and then they took the position. They (witnesses) were in that position for 5‑10 minutes. This witness has also stated that accused persons had fired 3 shots at them. He has also admitted that his torch was secured by police after three days of the incident. P. W. 5 Maula Bux has testified that Bahram first flashed the torch and they identified the accused who started firing and in the result they (witnesses) took position and fired back. In cross‑examination he has stated that they (witnesses) took the position on the ground and fired twice. Madad fired twice. Accused fired four shots at them. This witness has further stated that when they saw accused taking away bullocks they challenged them, some of the accused were behind the bullocks and some in front of them. As against this P. W. 2 Madad had stated before the Court that at the time of incident bullocks were ahead of accused persons and he could not tell as who was holding the rope.

From the evidence of the witnesses as stated above one thing is irresis tible that the story as told is improbable and not free from doubt. There are inconsistencies in the statements of the eye‑witnesses, which are irre concilable. If the accused had fired three or four shots, it is unthinkable that none of the four eye‑witnesses would get hurt while two or three shots fired by witnesses would. injure two of the accused. It is admitted by all the witnesses that so many co‑villagers came to the spot on hearing reports of gun‑fire after the departure of accused, but the witnesses have not be able to name them nor any one of them has been examined by prosecution to corroborate that firing took place between the witnesses and thieves.

It is also contended on behalf of the appellants that if the prosecution story was true and the accused were identified in the light of torch as alleged, then what prevented the complainant and other eye‑witnesses. from going to the Police Station straightaway to lodge the report: What was, the wisdom in waiting till the morning and following the footprints and blood trail to the house of Imam Bux to confirm.‑that he was injured and then complainant felt safe to go to the Police Station to lodge the report It was contended that it was done because the complainant and eyewitnesses were not sure about the identity of accused at the time of incident and they themselves did not believe in their own assertion that accused were identified by them in the light of torch. It was also conten ded that although the incident took place after midnight and there were a, many as four eye‑witnesses, who all claim to have identified the accused who were previously known to them and none of them, bothered to go 'to the Police Station immediately after the incident and waited till the morning then in the morning also complainant or, any one of the eye‑witnesses could have gone to the Police Station for report and others could have followed the footprints or blood trail, or they could have done that track ing alongwith the Investigating Officer. The whole complainant part alongwith others had gone after footprints and blood marks and as alleg ed reached the house of appellant Imam Bux. Pandhi complainant say,, that house of Imam Bux was six miles away. Bahram says seven miles away and Madad says 10 miles away. It is further alleged by the prosecu tion that footprints were lost on the way because of pacca ground but blood trail continued till the house of appellant Imam Bux, which was 6, 7 or 10 miles away from the spot as differently claimed by the witnesses Mr. Aftab Ahmed the learned counsel contended that it was physically impossible for any human being to continue bleeding from injuries for three or four hours, which time was required to cover, 8/10 miles of distance between the house of appellant Imam Bux and the vardat. The learned counsel contended that normally the time=limit for bleeding is 10‑15 minutes and then comes the clotting for which he made reference to " the medical dictionary and other text‑books. Mr . Murtaza Hussain the learned counsel for the State pointed out that the point‑in‑question related to expert evidence and no such questions were asked from the Doctor while he was in the box before the trial Court, hence references could not be allowed to be made. Be that as it may but the fact cannot be lost sight of that Imam Bux was medically examined and he had been found having sustained three injuries, one of which is on left thumb the other on left forearm and the third on left thigh and left gluteal region. Second injury contains nine and third 19 oval small pea sized wounds of entrance which have been declared by the doctor to be simple in nature. These injuries are not expected in the normal course to give rise to such exces sive bleeding as to last for 3 to 4 hours or so. The assertion is doubt ful that there was a long and continuous trail of blood from the spot to the house of Imam Bux covering distance of 7/8 miles. Mohammad Parial S. H. O. has admitted in his deposition before the trial Court that‑ foot. prints were lost but trail of blood continued. In his cross‑examination he has said that trail of blood led up to 5 miles from the spot, then there were footprints also and again near the house of Imam Bux there was trail of blood. This Investigating Officer is blowing hot and cold in the same breath. It appears that blood trail also got broken or had disappear ed after some distance when blood trail disappears, Investigating Officer finds . footprints re‑appearing and when they disappear, blood‑trail re‑appears. This has been done by the Investigating Officer to shoe the continuity. This explanation is not satisfactory. It would be interesting to note here that Imam Bux ‑has sustained three injuries declared to be simple by the doctor, which allowed blood‑trail for 7 to 8 miles to connect him with incident. On the other hand appellant Qaim had sustained 6 injuries on different parts and injury No.' 1 was composed of 28, injury No. 2 of 300, injury No. 3 of 2, injury No. 4 of 2, injury No. 5 of 18 and injury No. 6 of 4 oval pea‑sized wounds of entrance. So while counting wounds of entrance appellant Imam Bux has suffered 29 oval small pea sized wounds of entrance and he left behind blood‑trail for 7 miles and his associate appellant Qaim suffered 354 oval pea‑sized wounds of entrance, out of them only 28 were small pea sized and the rest were oval pea‑sized wounds of entrance.. Not only that but these injuries were seated on such parts as back of chest, abdomen, right thigh, middle of chest, upper right shoulder, right forearm and right hand, but he did not leave a drop of blood behind. He was not arrested from the house of Imam Bux, but was arrested from some other place and if Imam Bux had left blood‑trail, he should have left comparatively bigger and longer blood trail to follow him where ever he went, but that was not so in this case, no blood‑trail was found so far Qaim appellant was concerned although he had sustained a larger number of wounds on different parts including abdomen, shoulder, hand and thigh. For these reasons I hold that even this piece of evidence is not free from doubt.

Reasons give for inordinate delay of 14 hours ‑in the registration of F. I. R. is not satisfactory. Incident‑ took place at about midnight which can be said to be between 12 and I in the night and the report is lodged on the following day at 2 p. m. when the distance between spot and Police Station is six miles. This is in addition to the fact that eye‑witnesses claim to have identified the culprits in the light of torch, then F. I. R. should have been lodged promptly. Even if the complainant was not in a hurry and waited till morning he could have gone to the Police Station straightaway without following the blood trail to confirm the fact. Torch was produced after three days as asserted by Bahram himself. This piece of evidence even otherwise is. not considered as reliable. If the appellants have not been able to explain satisfactorily their injuries, prosecution can ‑ not take advantage of that because the burden to prove the case beyond doubt is always on the prosecution which cannot be shifted to defence. All the eye‑witnesses are inter‑related as admitted by them including mashir who has admitted in .his deposition that Bahram and Madad are his brothers and Maula Bux is his cousin. Relationship of these witnesses with complainant is admitted in F. I. R. None of the other persons who came to the spot on the alleged reports of gun‑fire has been explained to support the fact that such incidents took place. So many other persons accompanied tracking party but no independent witness has been examined. From the evidence it appears that ocular version of the witnesses is not 'only discrepant but is doubtful and it is probable that incident has taken place in some other manner, which is being concealed and a different story is being put up. There is no' clear cut and conclusive evidence of the record to prove the case against the appellants beyond doubt. One tainted niece of evidence cannot corroborate another tainted piece of evi dence, is therefore give benefit of doubt to the appellants and set aside their conviction and sentences and acquit them.

Appeal is allowed.

Appeal allowed.

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