P L D 1952 Lahore 215 (PLP)

A. MUHAMMAD JAN, J.‑This is an appeal by the Pro vincial Government against the order of Mr. Ghulam Mustafa, P. C. S., Magistrate, 1st Class, Lahore, whereby he acquitted Faiz Muhammad, son of Muhammad Khan, motor driver of Model Town, Lahore, who was tried on a charge under section 304‑A of the Pakistan Penal Code. Information relating to the occurrence was given on telephone by Lal Shah, Head Consta ble, who was posted on duty at Mayo Hospital, to Ata Ullah, Assistant Sub‑Inspector, attached to the Old Anarkali Police Station. The occurrence had taken place in the jurisdiction of this police station and is said have been reported by Mian Ghulam Hussain (P. W. 1) to Lal Shah. Ata Ullah dictated the message to the muharrir thana and he took it down as follows :‑ "My son Najmul Hussain was going on Edwards Road in a tonga when car No. P. J. L. 296 collided with the tonga. The car passed over the boy. Both the bamboos of the tonga have been broken. Some officer may be sent. The driver has run away in the car." After dictating this information Ata Ullah (P. W. 7) went to Mayo Hospital and, finding Najmul Hussain incapable of making a statement, recorded the statement (Exhibit P. A.) of Mian Ghulam Hussain as follows:‑ "I got my son Najmal Hussain, aged 9 years, admitted in the 2nd Class of Joan Macdonald Junior Cambridge School near Secretariat, Lahore, yesterday. I along with my relative Hidayat, resident of Lohari Gate, went to school in a hired tonga to bring the child. The child was free at 1 p. m. We seated him in the tonga and left for home. When we reached near the ihata of the Postal Lorry employees on the Edwards Road, car No. P. J. L. 296 came from the opposite direction on the wrong side, viz., on its right hand side and collided with the tonga on the right side. The driver of the car was driving it rashly. He dashed it into the tonga and proceeded further. He did not stop the car. The feet of the horse slipped because of the car's collision and Najmul Hussain leaped from my lap and Tell out of the tonga on the road. The wheel of the tonga passed over his belly because in spite of the fact that the horse slipped, the tonga kept moving on. My companion Hidayat was on the hind seat of the tonga. I have left the tonga and its driver at the spot. Its bamboos had broken. I have brought my child to Mayo Hospital and got him admitted here." In his evidence Mian Ghulam Hussain said that he made this statement to the police in Mayo Hospital and had, before that, made a similar statement to a havildar and that the havildar and constable of police, who questioned him when he reached the hospital, had telephoned to the police. The message recorded by the muharrir in the police station (Exhibit P. D./1) was brought to the notice of Mian Ghulam Hussain and he denied that he had told the Head Constable that his son had been run over by the car. It is quite possible that Lal Shah mis understood Mian Ghulam Hussain or that Mian Ghulam Hussain, in his distress, made a mistake. Lal Shah, who was called as a Court witness, said that Mian Ghulam Hussain had 'told him that a tonga and a car had collided on Edwards Road and that his son had been run over by a wheel." He added that he had conveyed this information to the police station on the telephone. In cross‑examination he said that the contents of Exhibit P. D/1 were according to the message con veyed by him. The Exhibit P. D/1 is a copy of the entry in the roznamcha of the Old Anarkali Police Station made on the telephonic message of Lal Shah, as stated above. It had no evidentiary value and could not be used to contradict Mian Ghulam Hussain. Section 145 of the Evidence Act provides that a witness may be cross‑examined as to previous state ments made by him in writing or reduced into writing and if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it~ which are to be used for the purpose of contradicting him. The entry in the roznamcha was not a statement made by Mian Ghulam Hussain and, therefore, could not be used to contradict him. It was a statement made by Lal Shah on the telephone to Ata Ullah, A. S. I., and has been contradicted in evidence by Mian Ghulam Hussain and all the other witnesses who saw the occurrence, namely, Hidayat Ullah (P. W. 2), who was in the tonga, Meraj Din (P. W. 3), driver of the tonga, and Muhammad Yahya (P. W. 4). who was standing outside his workshop on Edwards Road where the occurrence took place. They have all deposed that Najmal Hussain was run over by the tonga and not by the car. He died the same night in the hospital due to rupture of the liver and spleen. Doctor Anwar Shah (P. W. 5) has deposed that the injuries on his body could have been caused by being run over by a tonga. The in formation given by Mian Ghulam Hussain, father of the de ceased, to Ata Ullah, A. S. I., which was reduced to writing, read out to Mian Ghulam Hussain and signed by him as requir ed by section 154, Criminal P. C., and which was registered as the F. I R. relating to this case, was completely ignored by the trial Court and the telephonic message sent by Lal Shah (Exhibit P. D/1) was treated as the F. I. R. The evidence adduced in Court was brushed aside because it did not agree with the entry in the roznamcha regarding the running over of the boy by the car. A reference to section 154, Criminal P. C., would have made it plain that this entry was not the First Information Report in the case and could not be used as such. Section 154 Criminal P. C. reads as follows :‑ "Every information relating to the commission of a cogniz able offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant ; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf." Only information complying with the provisions of this section constitutes what is popularly known as the first information report. The entry in the roznamcha, Exhibit P. D/1 does not, conform to the provisions of this section. Lal Shah, who ob tained the information, was not in charge of any police station. The information was not reduced into writing by him. The record of the information in the roznamcha was not read over to Mian Ghulam Hussain nor, for the matter of that, to Lal Shah. It was not signed either by Lal Shah or by Mian Ghulam Hussain and it was not entered in the book prescribed by the Provincial Government for the purpose of recording First Information Reports. In Ahman v. Emperor (A I R 1938 Lah. p. 788) it was held that an entry made by a Sub‑Inspector in the daily diary of the police station is not a First Information Report. Unsigned telegrams and telephonic messages are not First Information Reports within the meaning of section 154 Criminal Procedure Code and after the receipt of a telegram or telephonic message the police proceed to the spot and take down the information from the complain ant or the informant and get it signed by him, the signed statement would be the First Information Report and not the telegram or the telephonic message. In this case the First Information Report was clearly Exhibit P.‑A and no reference was made to it by the trial Court Instead, Exhibit P. D/1 was wrongly treated as the First Information Report and on account of that all the evidence adduced by the prose cution was rejected. This was an entirely incorrect procedure to adopt. The Magistrate has quoted some decisions of this Court where it has been observed that material differences between the First Information Report and the evidence of the prosecution witnesses make the case doubtful. The salutary principle followed in these cases seems to have been mis-under stood by the trial Court. The principle is that the First Infor mation Report, which contains the earliest statement of the case, can and ought to be used as a check against the tendency of aggrieved parties to exaggerate the offence or improve upon their case. But where, as in this case, the evidence reduces the gravity of the offence disclosed in the report there is no reason to discard the evidence and cling to the previous statement which is not substantive evidence. The order of acquittal in this case is based on the ground that no reliance can he placed on the evidence of prosecution witnesses because it does nor accord with the telephonic message sent by Lal Shah, Head Constable, to Anarkali Police Station. For the reasons given above this order is unsustainable. The trial Court has not even considered the real question in the case that is, whether the accused had been guilty of any rash or negligent act. The question whether the child was killed as a result of having been run over by the tonga or the motor car was a secondary matter. We, therefore, set aside the order, dated the 18th April 1951, whereby Faiz Muhammad respondent was acquitted and order that he shall be retried according to law. A. H. Order of acquittal set aside.