1077 PLP 55 (SCMR)

MUHAMMAD YAQUB ALI, J.‑ While allowing Criminal Appeal No. 288 of 1966 a Division Bench of the erstwhile High Court of West Pakistan, Lahore has directed that A. S. I. Muhammad Hayat and Dr. Ahmad Ghulam Muhammad P. Ws. who had made false statements and prepared incorrect record in order to bring home the guilt to the accused persons be tried under sections 193 and 218, P. P. C. The Registrar was directed to draw a complaint and send it to the District Magistrate, Lyallpur to try the case himself. No notice was given to Muhammad Hayat A. S. I. and Dr. Ahmad Ghulam Muhammad before giving these directions. When they came to know of the ex carte order passed against them by the High Court they moved this Court after some delay for leave to appeal. Leave to appeal was granted to consider whether jurisdiction under section 476, Cr. P. C. had been legally exercised by the High Court in this case. Delay in moving the petition for special leave to appeal was condoned as the appellants had no notice of the proceedings in which the impugned orders were made. On examining the record and hearing the learned counsel for the appellants and the State we have come to the conclusion that the question whether the appellants made false statements during the trial that they were guilty of preparing incorrect record in the murder case is by no means free from doubt. In the opinion of the learned Judges the appellants had prepared a false dying declaration of Muhammad Saeed the deceased person in that case. The reasons given are: "Secondly from the perusal of the record we find that Muhammad Saeed deceased was unconscious and not in a ht condition to make a statement Exh. P. E. as alleged by A. S. I. Muhammad Hayat P. W. In other words statement Exh. P. E. E. is not the statement of the deceased. Dr. Munawar Din P. W. stated that the deceased was admitted in the hospital on the 3rd of July 1965 and died on the 9th of July 1965, that the entries in the bed ticket for the deceased between the 4th and 6th of July 1965 were in his hand while those on the 7th to 9th were in the handwriting of Dr. Ahmad Ghulam Muhammad (P. W. 3) that the condition of the deceased was critical, that he remained unconscious from the 3rd to 6th of July 1965, and that on the 4th July, 1965 from the bed head ticket he found that Coramine injection and intravenous injection of Glucose had to be given to the deceased and that he was also given Oxygen and under these circumstances his opinion was that the condition of the deceased was very serious and that he must have been unconscious. Dr. Ahmad Ghulam Muhammad (P. W. 3) on the other hand, stated that on the 7th of July 1965, at about 11‑45 a.m. on the query of police Exh. P. D. D. he gave his report Exh. P. D/1 that the deceased was fit to give a statement and that on the 8th of July 1965, on the receipt of ruqqa Exh. F. F. F. he gave his report Exh. P. F. F/1 that the deceased was not in a fit condition to make his statement. Certificate Exh. P. F. F/1 reads as follows. He is not yet fit to give statement. Later it appears that the word "Yet" was crossed out and in its place the word "now" was inserted. It is really difficult to understand that from 3rd to 6th July and on 8th July the condition of the deceased was critical and that he was not in a fit condition to make a statement and under these circum stances how did the doctor give certificate Exh. P. D/1 on the 7th of July that he was in a fit condition to make a statement. In any case if the A. S. I. had already recorded the statement of the deceased on the 7th of July 1965, as to whether the deceased was in fit condition to make his statement especially when he did not consider it necessary to request a Magistrate to record the statement. The following question, was, however, put to the A. S. I.:- "After having recorded the statement, of Mohammad Saeed deceased on the 7th of July 1965 when the matter was closed, and you did not intend to get his statement recorded by a Magistrate, why did you consider it necessary to address this ruqqa on the 8th of July 1965." He gave the following reply; "On the 8th of July, I got information that the condition of Saeed had again become serious. I made an inquiry vide ruqqa Exh. P. F. F. to see if Saeed was fit to make a statement, so that I may get dying declara tion recorded by a Magistrate." The A. S. I. has been blowing both hot and cold in the same breath ; In the beginning he did not consider . . . . . . . it necessary to get the state ment of the deceased recorded by a Magistrate and after having recorded his statement himself. he on the next day suddenly got into his head to get the statement of the deceased recorded by a Magistrate. Certificate Exh. P. F/1 also cast a great suspicion on the conduct of both the A. S. I. and Dr. Ahmad Ghulam Muhammad P. Ws. The doctor had first written that the deceased was not yet fit to give statement, which shows that even on the 7th July 1965, the condition of the deceased was critical and that he was riot in a fit condition to make a statement. The doctor, however, realizing that mistake later struck off the word "yet" and inserted the word `now'. There is another strong indication on the record to show that the statement Exh. P. E. E. is not that of the deceased. Normally a Police Officer recording a dying declara tion would have obtained the thumb impression or the signature of the deceased, but in the present case we find that both the thumb impression and the signature are missing. The A. S. I. in our opinion deliberately recorded the statement of the deceased under section 161, Cr. P. C. in order to do away with the necessity of obtaining his signature or thumb‑impression. This statement is in conformity with and suffers from the same disability as the statements of the other eye‑witnesses." It appears to have escaped the notice of the learned Judges that if the A. S. I. had gone to the extent of fabricating the statement of Muhammad Saeed under section 161, Cr. P. C. he could have easily got his thumb impression on the statement even if he was unconscious. The inference drawn by the learned Judges from the omission of the thumb‑impression or signatures on the statement Exh. P. E. E. of Muhammad Saeed deceased is therefore not conclusive In the circumstances it is doubtful if the appellants can be successfully charged for the commission of offences under sections 193 and 218, Cr. P. C. No useful purpose will therefore be served in directing their prosecution. Nor will it be in the interest of justice to resort to this course at this late stage. We accordingly allow the appeal and set aside the directions given by the High Court for the prosecution of the appellants for making false statements in Court and fabricating false record. Appeal allowed.