1986 PLP 2454 (MLD)

According to Mst. Haideran, besides her, Muhammad Akmal, Abdur Rehman, Yousaf, and Akhtar Iqbal saw the occurrence. These persons were present on a Tharra at a short distance in the street. Thereafter Mst. Haideran went to the Police Station; informed the police and the police obtained her thumb impression on a paper. She gave explanation why she did not pursue the first information report. The other eye‑witness is Abdur Rehman. He corroborated the statement of Mst. Haideran. He also deposed about the recovery of gun at the instance of the appellant. Dr. Muhammad Aslam, Senior Medical Officer, D. H. Q. Hospital, Sheikhupura, conducted the post‑mortem of Muhammad Hussain. He noticed the following injuries on the dead body:‑ (1) One wound of entry 9 c.m. x 5 c.m. breaking both bones of the left leg and crushing the muscles and blood vessels on the medial of the middle of the left leg.. (2) Wound of entry 2 c. m. x 1 c. m. just medial to injury No.1. (3) Wound of entry 2 c. m. x 1 c. m. just above injury No.1. (4) Seven wounds of exit on the back of left leg. (5) A lacerated wound 6 c.m. x 2 c.m. x skin deep, on the back of the right leg. In the opinion of the doctor, the cause of death was shock and haemorrhage because of injuries Nos. 1 to 3, caused by fire‑arm. These injuries were sufficient to cause death in the ordinary course of nature. The rest of the evidence consists of the reports of the Fire Arms Expert, the Chemical Examiner and the Serologist as well as the recovery of gun. Now I would like to refer to the statement of the appellant in detail, which is as follows: The appellant denied all the allegations. He admitted the recovery and said that he had himself produced his licensed gun. In reply to the question why this case was against him and why the P.Ws. deposed against him, the appellant stated: "A false case has been made out against me and P. Ws have deposed due to their relationship with the complainant party. They had not seen the occurrence." To another question as to whether he wanted to say anything else, the appellant answered: "On the day of occurrence I came back to my house from my Behak. I was already carrying my licensed gun. Reaching home, I saw Zafar Iqbal, son of the deceased, and my wife list. Khamsa Bibi together sitting in my outer Baithak. I was suddenly provoked and lost my sense. Zafar Iqbal held my wife by her arms anal started taking her away forcibly at pistol point towards his house, and on my alarm Muhammad Hussain, deceased, came out. I fired at Zafar Iqbal in order to save my wife and as well as under provocation, but the fire shot hit Muhammad Hussain, deceased, accidently." The appellant did not produce any evidence in defence. He only tendered certified copy of judgment (Exh. D.C.), whereby Zafar Iqbal son of the deceased had been convicted under section 13 of the Arms Ordinance, 1965, for keeping an unlicensed pistol in his custody. Mst. Haideran, complainant, was examined thrice on oath. This was in addition to the report lodged by her with the police. The First Information Report was lodged on 2‑6‑1982. The first complaint was filed on 8‑9‑1982. Thereafter she filed a second complaint. This was neither dated nor thumb marked or signed by her. The trial Judge did take notice of the fact of the complaint being unsigned and undated, but he did not attach any importance to it. He observed that it was not necessary in law that a complaint must be signed by the complainant. Learned counsel also did not take this aspect seriously. But in my view that is not to be taken so lightly. Learned counsel for the appellant argued that Mst. Haideran was not an eye‑witness. Her evidence amounts to hearsay. Hence her statement is to be discarded. Learned counsel further submitted that the story given by Mst.Haideran was unreasonable. It is clear that she withheld some important evidence pertaining to the actual incident. Hence the story given by her is not free from doubt. According to the learned counsel, there was inordinate delay in filing the complaint and lodging the F.I..R. Last of all, learned counsel submitted that in the absence of any independent corroborative evidence statement of Mst. Haideran is not to be relied upon. In support of this reliance was placed upon Mustoo alias Ghulam Mustafa v. The State 1984 P Cr. .L J 1535. With regard to the evidence of Abdur Rehman, learned counsel argued that he was an interested witness being a relative of‑ the complainant. Initially he was cited as a recovery witness by the police in the challan. According to the learned counsel, if at all there was any eye‑witness to the occurrence, that was Akmal, who was given up by 'the prosecution as being unnecessary. Learned Assistant Advocate‑General argued that the appellant deserved to be convicted under section 302, P.P.C. and sentenced to imprisonment for life: Learned counsel for the complainant wanted the appellant to be sentenced to death because according to him it was a pre‑planned murder. The plea of the appellant finds no support from any evidence on record. It was not a case of grave and sudden provocation, nor did it fall within any one of the exceptions of section 300, P.P.C. The delay in filing the first complaint which was filed after Mst. Haideran gave up, the First Information Report, has not been properly explained, nor that of filing the second complaint which, as already referred to above, was not even signed by her. This factor is not only detrimental to the prosecution case but also beneficial to the appellant. The explanation to cover the delay furnished by Mst. Haideran was that she being an illiterate woman came to know later on that the eye‑witnesses named by her had not been mentioned in the F.I.R. But instead the Police included the names of those who were related to the appellant. It is normal practice that when an F.I.R. is lodged it is read out by the Police Officer to its maker, who is, then required to sign or thumb mark it. In this case, it has also come in the evidence of Muhammad Sharif, A.S.I., that a copy of the F.I.R. was handed over to Mst. Haideran, who in her cross‑examination admitted the contents of the F.I.R. to be correct. Three months' delay in filing the complaint, in the absence of any satisfactory explanation, cannot be lost sight of. Hence I have to be very careful in relying on the testimony 'of Mst. Haideran. The story given by her in the F.I.R. is different than what she deposed before the trial Court. In the F.I.R. her case was that her son Zafar Iqbal was suspected of having illicit relations with Mst. Khamsa, wife of the appellant whereas when she deposed before the Court her stance was different. There she gave a different story which was that her son Zafar Iqbal used to send some portion of his income from Saudi Arabia to his would be father‑in‑law i.e., the appellant. In this sequence, I would like to observe, that in addition to the F.I.R. Mst. Haideran was examined thrice on oath and every time there was change in her evidence. If at all any importance is to be attached t the statement of Mst. Haideran then the important eye‑witness was Akmal. Prosecution gave him up as unnecessary, although I think h was a necessary witness. Mst. Haideran did not mention the particulars in the F.I.R. which she gave before the trial Court as to how and why Zafar Iqbal was called to the house of the appellant, although the F.I.R. was lodged promptly. In view of too many defects in the testimony of Mst. Haideran, I am not prepared to believe that she saw the occurrence and she was a truthful witness. This leaves me to examine the evidence of Abdur Rehman. He is relation of Mst. Haideran. He was cited as a recovery witness in the challan case. His evidence as such cannot be taken to be independent and reliable evidence so as to furnish the necessary legal corroboration to the statement of Mst. Haideran, who has already been disbelieved. The result is that the prosecution has miserably failed to prove its case against the appellant. Before proceeding further, I would like to refer to section 190, Cr.P.C., relevant portion of which reads as follows:‑ "Except as hereinafter provided, any District Magistrate or Sub‑Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence:‑ (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed." Word "complaint" as defined in section 4(1), clause (h), Cr.P.C., means, "the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer". According to the aforesaid provisions, a Magistrate is competent to take cognizance even on a verbal information. It is, therefore, obvious that it is not necessary in law that every time there must be a written application before the law is put into motion. But when a complaint is filed, I am of the view that it is necessary for the author to put down his signatures as well as the date. Both these factors play an important role in proving the prosecution case. Signatures become all the more necessary because unless those are proved the document is not admissible in evidence I fail to understand how and under what law the trial Judge admitted the complaint in evidence and it was exhibited as PH. Having held that the prosecution has failed to prove its case against the appellant, now I have to examine legal effect of the plea of the appellant and his criminal liability. An important legal question arises that after having disbelieved the prosecution story, is it necessary to examine the plea of the appellant? Can it be pressed into service in order to examine the criminal liability of the appellant, or it can be completely ignored? According to law, once an accused takes a plea, it is either to be accepted or rejected in toto. It is also an admitted principle of law that when a specific plea is taken by an accused the onus is on him to make out a prima facie case that his version or story is more probable and likely than the prosecution case. In my view such a situation can arise only when there is a reliable prosecution version. But when the prosecution story is neither authentic nor reliable and has been outright rejected, then I don't think it is necessary that I should at all advert, discuss and examine the plea of the appellant. The cardinal principle of administration of criminal justice is that onus always remains on the prosecution to prove its case. I am fortified in this behalf by the decision of the Hon'ble Supreme Court of Pakistan in Ilahi Bakhsh and another v. State 1969 S C M R 584, wherein it has been observed:‑ "The failure of accused to prove his plea of alibi does not recoil to his disadvantage. If an accused person in his defence is entitled to take up whatever plea he likes, true or false, the fact that he fails to establish all or anyone of them should not recoil to his disadvantage for the drawing of any inferences regarding his guilt which has to be clearly and satisfactorily established by the prosecution. In criminal cases, the onus always remains on the prosecution to prove its case." For the foregoing reasons, I am of the view that this appeal must be allowed. I, therefore, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith, if not required in any other case. So far as 'the private revision, filed by Mst. Haideran Bibi, is concerned, I don't find any merit in that and the same is hereby dismissed in limine. S. A. Appeal accepted.