1985 PLP 1455 (SCMR)

M.S.H. QURAISHI, J.‑‑Saeed Ahmad appellant sought leave to appeal against the dismissal by the Lahore High Court of his appeal from his conviction and sentence of imprisonment for life plus fine recorded under section 302, P.P.C. by the Additional Sessions Judge, Lahore, and leave was granted to him to consider the contention that an F.I.R. cannot be treated as a substantive evidence so as to base a conviction on it and that the recoveries and the medical evidence alone could not be made the basis for conviction.

2. The prosecution case is that on 6‑2‑1980, at about 9.30 a.m., Muhammad Aslam complainant and Muhammad Shafi and Sultan P.Ws., attracted by the noise coming from the house of the appellant in Ward No.7, Kahna Town, rushed there and saw the appellant inflicting Chhuri blows on his wife Mst. Balquees alias Sardaran deceased. They tried to intervene but the appellant after inflicting numerous blows on the deceased, made good his escape by threatening the witnesses with the Chhuri. Muhammad Aslam promptly reported the matter to the police. The motive, as given by him, was that the appellant had been pressing the deceased to bring money from her parents so that he could discharge his debt of Rs.2,000 to Muhammad Afzal, a brother of the complainant. The appellant was arrested the same afternoon while boarding a bus at the Bus‑Stand Raiwind, some 11 miles from the place of occurrence. From his person, the police recovered a blood‑stained sweater (Exh.P.1) and a blood‑stained Dhoti (Exh. P.2). On 10‑2‑1980, a blood‑stained Chhuri (Exh.P.3) was recovered at his pointing from a bunch of bushes by the side of Ferozepur Road. The presence of human blood on the recovered articles was confirmed by the Serologist. The post‑mortem examination revealed the presence of 16 incised/stab wounds and an abrasion, all over the body of the deceased, which were held to be sufficient, in the ordinary course of nature, to cause death.

3. During the trial, the ocular witnesses, namely, Muhammad Aslam complainant (P.W.7), Muhammad Shafi (P.W.8) and Sultan (P.W.9) did not support the prosecution case for which reason they were declared hostile and allowed to be cross‑examined by the prosecution. The complainant admitted having signed the F.I.R. but alleged that the signatures had been obtained forcibly and on a white paper. The recoveries were, however, proved by Wali Muhammad (P.W.3) in respect of blood‑stained clothes and by Haji Bashir Ahmad (P.W.5) in respect of blood‑stained Chhuri. They were supported by the Investigating Officer S.H.O. Ali Muhammad Dogar (P.W.11).

4. The appellant denied the allegations and stated that he had not seen the dead body of the deceased in his house. He also denied the recoveries and disowned the Chhuri. His case was that he had been implicated due to misunderstanding. He, however, led no defence.

5. The trial Court considered the recovery of the dead body from the house of the appellant and the recovery of the blood‑stained clothes and the blood‑stained Chhuri from the appellant sufficient to warrant his conviction of the murder but since the motive had not been proved, it awarded him the lesser penalty. A learned Judge of the High Court agreeing with the trial Court dismissed the appellant's appeal and maintained his conviction of the murder. In this connection the learned Judge also held that "... conviction of the appellant can be based on the F.I.R. Exh.P.A which is a substantive piece of evidence in the facts and circumstances of this case".

6. The view taken by the High Court that an F. I. R. is a substantive piece of evidence and that a conviction could be based on it is obviously contrary to the well‑established rule that "an F. I. R. is never substantive evidence in any case". See Mazharul Haq v. Ishaque Sardar P L D 1962 S C 480, Sohni v. Bahaduri P L D 1965 S C 111, Talib Hussain v. Fazal Hussain P L D 1976 S C 518 and Muhammad Sadiq v. State PLD 1977 S C

582. The mere fact that the High Court has rooted its observation "in the facts and circumstances of this case" would neither make any difference nor create any exception to the rule. An F.I.R., however, being a previous statement can be used to contradict its maker under section 145 of the Evidence Act or to corroborate him under section 157 of that Act. In Adalat v. Crown P L D 1956 F C 171 it was held that an F.I.R. "being no more than a previous statement, if the maker of it is examined in Court it can be used not only by the defence for the purpose of contradicting him but also by prosecution for the purpose of corroborating and, with the permission of the Court, for the purpose of contradicting him". The same view was taken it Nisar Ahmad v. State 1971 S C M R

398. But even if it is not evidence by itself, a first information report is undoubtedly an important document in a criminal case which has been investigated by the police on the basis of that report and eventually, prosecuted in the Court inasmuch as it lays the foundation of the case, furnishes clue to the possible truth of the allegations against the accused and shows material or which the investigation commenced. See Siraj Din v. Kala P L D 1964 SC 26.

7. However, there is no reason to hold that the circumstantial evidence comprising the recovery of the dead body, the blood‑stained clothes, the blood‑stained crime weapon and the medical evidence alone could not be made basis for the conviction. According to Corpus Juris Secundum "material facts may be established by circumstantial evidence; and such evidence alone, although it should be acted on with caution, will support a conviction if, when considered as a whole, it produces a belief beyond a reasonable doubt that the accused is guilty. Circumstantial evidence is not as a matter of law inferior to direct evidence, and such evidence is not incapable of producing a high degree of proof equal to that derived from direct evidence", but "to sustain a conviction, the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and inconsistent with the hypothesis that he is innocent, and with every other reasonable hypothesis except that of guilt". "Circumstantial evidence" according to the ‑Privy Council, in Lejzor Teper v. The Queen P L D 1952 F P C 119 "may sometimes be conclusive, but it must always be narrowly examined if only because evidence of this kind may be fabricated in order to cast suspicion on another. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co‑existing circumstances which would weaken or destroy the inference". In Allah Ditta v The State P L D 1958 S C 290 it was laid down that "where all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused". Again, in Sairan v. State P L D 1970 S C 56 this Court observed: "As regards conviction based on circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt."

8. From the evidence on record and the admission of the appellant it is established that the deceased was his wife. There is also sufficient evidence to establish that the murder had taken place in and her dead body had been recovered from his house. In reply to the relevant question, the appellant had not denied that the house from which the dead body had been recovered was his. These facts are capable of raising a presumption that he was not unconnected with the murder. Learned counsel referred to the evidence of Wali Muhammad (P.W.3) that "the accused had been living in Raiwind". This would, according to him, suggest that the appellant was not living in his house at Kahna from where the dead body had been recovered. But this would not, however, rule out the possibility of his having visited the housed at Kahna and being present there at the time of occurrence. The presence of human blood on the clothes he was wearing at the time of his arrest which was a few hours after the occurrence and the recovery of a weapon which accorded with the kind of weapon used in the crime, for which recoveries he had no explanation except for a bland denial, go to dispel any doubt in regard to his culpability. Both the, Courts below had believed the recovery witnesses, namely, Haji Bashir Ahmad (P.W.5) and Wali Muhammad (P.W.3). Haji Bashir Ahmad is related to the appellant who is the son of his first cousin and also to the deceased who was daughter of his real sister. Our attention was drawn to his statement that "From 6‑2‑1980 upto 10‑2‑1980 we had been coming and going to the Police Station in connection with investigation of this case", to suggest that the witness had shown undue interest in the case and had himself sought to be made a witness in the case. In view of his close relationship with both sides, his anxiety over the investigation of the case should not detract from his credibility. In regard to Wali Muhammad, it was pointed out that he was a stock‑witness of the police as by his own admission he had appeared in 2/4 criminal cases as a witness. The High Court repelled such objection raised before it, on the view that he being a Lambardar, this admission would not impair his credibility in the present case, particularly when he had no enmity with the appellant or relationship with the complainant party. We see no reason to disagree. Both the witnesses are supported by the Investigating Officer. The latter had, also stated that when the police came to the Bus‑Stand, the appellant on seeing Bashir P.W. tried to run away but was secured. The circumstantial evidence in the case is thus consistent with the hypothesis of the guilt and not innocence of the appellant and as such would constitute sufficient basis to sustain the conviction.

9. In this view of the matter the appeal 'must fail and is accordingly dismissed. M . B . A Appeal dismissed.