P L D 1992 Lahore 314 (PLP)

Having been accused of the murder of one Khushi Muhammad and of a murderous assault on Mst. Perveen, Mudassar Hussain, Muhammad Razzaq, Muhammad Ayyub and Muhammad Azam, through F.I.R. No.225 of 1986 of Police Station Madawan of District Lahore, the first live respondents are facing trial in the Court of a.learned A.S.J. at Lahore on the said charges.

2. After the entire prosecution evidence had been examined the accused respondents petitioned the learned trial Court for examining one Muhammad Siddique D.S.P. as a Court witness on the ground that he had also investigated the case in question and his testimony could, thus, assist the Court in arriving at a just conclusion. 3. . The said D.S.P. was accordingly summoned and during the course of his examination‑in‑chief as C.W.1, he, inter alia, stated as under:‑‑ "I found Mehraj Din and Liaqat, both the accused to be innocent",

4. The learned Prosecutor objected to the admissibility of this part of this witness's statement primarily on the ground that the same being an opinion of a person was not admissible in evidence and could not be on record. 5‑ Having considered the submissions made by the learned Prosecutor as also by the learned defence counsel, the learned trial Court through its impugned order dated 31‑1‑1990, dismissed the above‑noted objection and declaring the impugned portion of the statement in question to be admissible in evidence, allowed the same to remain on record.

6. The complainant‑petitioner challenges this order of the learned trial Court through the present petition.

7. The question which arises for determination is whether the statement above‑quoted of the D.S.P. above‑dcscribed was evidence relating to a FACT or whether the same was the OPINION of an Investigating Officer and further that if it was the OPINION of an Investigating Officer whether the same was or was not admissible in evidence in pursuance of any of the provisions contained in Articles 59 to 65 of the Qanun‑e‑Shahadat, 1984.

8. The expression 'Fact' is defined as a statement of that which someone knows; an actuality; an assertion or statement of a thing which exists or existed; an actual happening in time or space, an event; a thing said or done. It is something which is susceptible of exact knowledge. It is a thing done; an action performed; an event or circumstance; and actual happening or occurrence which has actually taken place. It is a state of things; an existence; something which is acutal * It is a physical appearance as it actually exists or existed. An actual and absolute reality. It also means reality of events or things. Reference may be made to 'Words and Phrases' by West Publishing Company, Permanent Edition, Volume 16; Black's Law Dictionary, Fifth Edition and the Oxford Universal Dictionary. 9. ' As against this, Opinion is an inference or conclusion drawn by a witness from FACTS. It is what one thinks of somethirig as distinguished from what he knows about it. Opinion is a notion or conviction founded on probable evidence. It is an inference drawn from observed facts. It is' one's notion, idea or views about something. Opinion is what one thinks about a particul~r thing, subject or point. It is an estimation which is not susceptible of exact knowledge.

10. The difference between a fact and an opinion can be further illustrated by the example of a medical‑man who has seen and has carried out the postmortem examination of a dead body. He states about the number, the position and the extent of injuries which he has noticed and can also offer opinion as to the manner in which those injuries might have been caused an d as to cause of the death. In describing the number, position and extent of injuries, this medical‑man does not depose as an expert because he is stating about facts which he has actually observed, perceived and noticed. But when he states about the weapon with which or the manner in which these injuries were caused and as to the cause of the death, the same is an opinion of the doctor drawn from the facts that he has observed or noticed.

11. The Investigating Officer is a person investigating an offence and is person who has obviously not seen the occurrence. His assignment only is to collect evidence and to enquire from people about the occurrence in question and then to place all this material and information before the concerned Magistrate in the form of a report under section 173, Cr.P.C.

12. Therefore, when he states that so and so is innocent or guilty, he is not stating something from his personal knowledge of the occurrence in question as it had actually taken place but such a statement is only an inference or the conclusion drawn by him from the facts and circumstances as they appeared before him.

13. Analysing the statement in question in the light of the above definitions of the fact and the opinion, the conclusion is irresistible that such a statement of an 1.0. is not his statement about a fact but is only his opinion drawn from the material collected by him.

14. We know that as a general rule, the opinion of a witness is irrelevant and is inadmissible in evidence. A witness can only state the facts which he has seen, heard or perceived and not about the conclusion which he has formed observing or perceiving these facts.

15. To this general rule, however, there are some important exceptions which allow admission of opinion in evidence and these exceptions are now G statutorily recognized and stand enacted in a set of Articles from 59 to 65 of Qanun‑c‑Shahadat, 1984.

16. The next question which would thus require resolution is whether the opinion of a person who investigates a case does or does not fall within the ambit of these provisions of Qanun‑e‑Shahadat and whether such an opinion of an. Investigating Officer could or could not be brought on record as legal evidence at a trial.

17. Although it would be inappropriate and not even possible to lay down any hard and fast rules on this question yet generally speaking in our set‑up an 1.0. is not an expert as envisaged by the above‑mentioned provisions of law.

18. The Investigating Officers in our country are at times not even matriculates and have no special training or knowledge in matters of investigation.

19. Ordinarily, the task assigned to an 1.0. is to proceed immediately to the place of occurrence; to observe and record whatever is the state of things and their position at the place of occurrence; to seize articles which appear to be connected with the commission of the offence; to make inquiries from the people who appear to be acquainted with the occurrence in question and to record the same, if need be; to arrest the persons who appear to be responsible for the commission of the offence in question; to collect all information and material which appear to be connected with the occurrence in question and finally to consolidate the same and to place it before the competent Court.

20. The technical matters which crop up during the course of investigation are not to be handled by the 1.0. himself but he is required to seek the assistance of experts such as, Doctors, Chemical Examiners, Serologists, Ballistic Experts, Trackers, Finger Print Experts etc. Reference may be made to Chapter 25 of the Police Rules of 1934.

21. Even the Code of Criminal Procedure does not consider an investigation, which is a mere collection of evidence, to be a science or an art requiring possession of special skill, expertise or knowledge. Because, as has been defined in section 4 of the Cr.P.C., investigation is a mere collection of evidence. And then the Code envisages investigations not only by police officers but even by ordinary persons of the choice of a Court. Reference may be made to the pro‑visions of section 202 of the Cr.P.C.

22. Thus the 1.0. is not an expert, nor can the investigation be termed as‑~ science or art, howsoever liberally these expressi6ns may be construed.

23. Of course, there may be some exceptions to this rule and it would always be open to the 1.0. to demonstrate that some particular matter in a particular investigation required special skill, education or experience and that he was a person who was possessed of such scientific, technical or other specialised knowledge and was thus qualified to be acknowledged as an expert H as provided by law. In such a case, of course, the 1.0. could be treated as an expert and his opinion in such a situation could fall within the ambit of the relevant provisions of Qanun‑e‑Shahadat and could be brought on record as legal evidence.

24. In the absence of such a claim, the 1.0. is not an expert nor could the exercise involved in the investigation fall within the ambit of the terms, science or art.

25. Therefore, the statement of an 1.0. that according to his investigation, a particular person was innocent rr guilty, as the case may be, is an expression of opinion which expression or statement is irrelevant and inadmissible in evidence.

26. There is yet another reason for ousting such an expression or statement from the record of a criminal case.

27. The function of drawing inferences from facts is a judicial function and has to be performed by a Court alone. If a witiess was permitted to state not just the facts which he had perceived but also about the opinion which he had formed on perceiving these facts, then the same would amount to delegation of essential judicial functions to witness and investing them with the attributes of a Judge which the law cannot and does not permit.

28. The learned counsel appearing in support of this petition placed reliance inter alia on Darghahi and others v. The State (PLD 1958 Lah. 3W). 29., The. learned counsel appearing for the accused‑respondents, however, placed reliance on (1 Cal. 543); (AIR 1974 SC 463); (AIR 1963 Mad. 179); (AIR,1968 SC 178); (PLD 1976 Lah. 574); (PLD 1965 W.P. 734); (1969 SCMR 59); (1972 PCr.1d 1259); (NLR 1988 Cr.C. 372); (1987 PCr.1J 468) and (PLD 1987 SC 13) to canvass that the persons who had conducted investigation to ons in the offences which were the subject‑matter of trials should be summoned and examined by the trial Courts because such witnesses could be of assistance to ,the learned trial Court for arriving at just conclusions.

30. There is no cavil with the proposition being canvassed by the learned counsel for the respondents but this would not mean that if such a person was examined by the Trial Court then whatever he had stated before the said Court must, in disregard of all laws governing the subject, be brought on record. The relevancy and admissibility of the utterances of such a witness has to be judged in the light of the relevant legal provisions and the admission or the rejection of his statement or any part thereof has to be determined in accordance with the law regulating the subject.

31. It may, however, be mentioned that views of the Investigating Officers do obviously form part of the case diaries and though such views cannot be validly brought on record as legal evidence but it is always open to the Courts K to make use of the same within the allowance permitted by section 172, Cr.P.C.

32. In view of what has been noticed, discussed and held above, this petition is accepted. The impugned order dated 31‑1‑1990 of the learned A.SJ. of Lahore is set aside and it is declared that the portion in question of the statement of Muhammad Siddique D.S.P. appearing as C.W.1 before the learned trial Court is inadmissible in evidence and cannot be allowed to remain on record. Petition accepted M.B.A./M‑2725/1