1968 P Cr (PLP)

"The knife does not belong to me.. It was, however, recovered by Muhammad Sharif P. W. at the spot. Actually I had snatched the knife from Muhammad Anwar P. W." He admitted having been detained at the spot by Muhammad Sharif P. W. and others and having been handed saver to the police. While pleading his innocence, in answer to the question as to why this case was brought against him, he answered as follows:‑ "I had friendly relations with Abdul Ghafoor. Muhammad Anwar P. W. was asked by Fazal Elahi deceased to forbid Abdul Ghafoor to continue relations with me but I did not discontinue the relations despite of the fact. Abdul Ghafoor talked to me about the matter. I have been falsely implicated by Muhammad Anwar." At the trial, however, he completely went back on his statement before the Committing Magistrate, denied almost every thing including the possession of the knife Exh. P. 1, shirt Exh, P. 2, as also the alleged apprehension by Sharif and Sarfraz P. Ws, near the spot and his subsequent detention. While reiterating his innocence he stated as follows:‑‑ "I had friendship with Abdul Ghafoor P. W., but I have never ha? illicit relations with him, His relatives used to forbid him from associating with me. The case has been set up against me on account of enmity." He produced no evidence in defence. In his supplementary statement while explaining the injuries on his person he stated that five or six days prior to the occurrence he had sustained these injuries in the course of a fight with Anwar P: W. in the bazar. Of course both before the Committing Magistrate as well as the trial Court he had to admit that he and Aftab P. W. were sent up by the police under section 107/151, Cr. P. C. While admitting his quarrel before the Committing Magistrate resulting in these proceedings he denied the same before the trial Court.

5. After having narrated the facts of the case, the learned Additional Sessions Judge in paragraph 6 of his judgment detailed the reasons for placing reliance on the prosecution version resulting in an order of the appellant's conviction. Reference was made in particular to the disinterestedness of the witnesses, the improbability of false substitution in a single ?accused case like this, hollowness of the defence version and the appellant's own incriminating admissions before the Committing. Magistrate from which he resiled apt the trial.

6. The learned counsel for the appellant raised the following contentions before us: (1) That there was considerable delay of more than stn hour in the lodging of the first information report at the police post which stood at a short distance of about 100 yards from the place of occurrence and at any rate no formal F. I. R. in terms of section 154, Cr. P. C. was available in the case, and as such the statement Exh. P. F. of Muhammad Anwar complainant remained unproved: (2) that by making a supplementary statement Exh. D. A. on 19th September 1965, Muhammad Anwar complainant had made considerable improvements upon his earlier statement Exh. P. F. resulting in the emergence of an altogether new version, with the change of venue of occurrence, in introduction of two more eye‑witnesses and the mention of an injury to the appellant etc, as a consequence of which his statement lost all credibility; (3) that likewise the statement of Muhammad Sharif (P. W. 8) the solitary witness mentioned in Exh. P. F. contained considerable improvements and as such was worthy of no credit; (4) that owing to the non‑mention of Ghulam Hussain and Sarfraz P. W. in the first information report Exh. P. F. no reliance could be placed on the statement of these two P. Ws; (5) that the possibility of the case falling within the purview of Exception 2 or in the alternative Exception 4 of section 300, P, P. C. not be ruled out; and (6) that in any case, the sentence of death was not warranted in the circumstances of the case.

7. We now proceed to consider these contentions seriatim. In so far as the delay in the lodging of the first information report is concerned, having regard to the prevalent war-conditions in those days with the continuing beem of guns all around and frequent dog‑fights in the air coupled with the regular imposition of dusk to dawn curfew, the delay in this case loses its significance, It may be observed that it is not delay per se in all cases which would give rise to an adverse presumption against the prosecution, but delay in the particular circumstances of a case, coupled with possibilities of fabrication or exaggerations of facts by conference and consultation that would tend to militate against the prosecution. Notwith?standing the fact that the Police Post Garhi Shahu stood only at a distance of 100 yards from the place of occurrence we are of the considered opinion that the delay of about an hour or so has been fully explained inasmuch as the deceased was immedi?ately removed by the complainant to the hospital whose safety was of the foremost importance and after having got him admitted in the first instance. Muhammad Anwar then repaired to the police post without appreciable delay, regards the second limb of this argument, that in the absence of a formal proof of the F. I. R. the case should be treated as one without it. It may be observed that the statement of Muhammad Anwar Exh. (P. F.) recorded by S. I. Iqbal Qamar (P. W. 15) fulfils all the legal requirements of a F. I. R. as provided in section 154, Cr, P. C. The section reads as follows:‑ "Every information relating to the commission of a cognizable offence if given orally to an officer incharge 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:" From the analysis of the section, it is clear that in order to qualify itself as a first information report, it should fulfil they following requirements: (i) It should be an information relating to the commission of a cognizable offence; (ii) if given orally to an officer‑in‑charge of a police station it should be reduced to writing by him or under his direction; (iii) having been thus reduced to writing it should be read over to the informant; (iv) it should be signed by the informant, giving the informa?tion; and (v) its substance should be entered in a book kept by the officer‑in‑charge of the police station in the prescribed form. It can be stated without fear of contradiction that all the aforesaid legal requirements were fulfilled in the instant case. The only flaw that has crept in owing to inadvertence on the part of the learned trial Judge is that the formal F. I. R. drawn on the basis of Exh. P. F. was not duly proved. This omission is hardly of any consequence and nothing would really turn upon it, inasmuch as it did not affect the appellant's right to confront with it the maker of this report for purposes of contradictions. Even otherwise, it is well‑settled that the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation and being possessed by such knowledge through informal intelligence the police can undertake an investigations of its own motion without drawing up a formal first information report. This view is based on Emperor v. Khawaja Nazir Ahmad (A I R 1945 P C 18) and was relied upon in Bashir Saigal v. State (P L D 1964 Lah. 148). The question was again considered by one of us (M. Jamil Asghar, J. in a recent judgment reported in 1968 P. Cr. L. J.

720. The contention has, therefore, no force and is overruled. 8. (i) The factual correctness of the contention relating to improvements in the supplementary statement Exh. D. A. cannot be denied. No doubt this statement strongly suggests a change in the venue of the occurrence from in front of the house of the deceased, as originally stated in Exh. P. F. to the neighbourhood of a shop of Ghulam Hussain (P. W. 10) as stated in Exh. D. A. Again the names of Ghulam Hussain (P. W. 10) and Sarfraz (P. W. 9) were introduced in Exh. D. A for the first time an eye‑witness of the occurrence. Similarly in Exh. P. F. no part was attributed to himself by the complainant as disclosed in Exh. P. F. that he hit the appellant with a brick‑bat in self‑defence. Lastly it is for the first time that a reference was made in Exh. D. A. to proceedings under section 107/151, Cr. P. C. initiated by the police against the appellant and Aftab Ahmad (P. W. 12). (ii) It cannot be gainsaid either that Muhammad Anwar appearing as P. W. 7 at the trial had made some improvements upon his two police statements taken together. Elaborating them he deposed that the appellant and the deceased began walking towards the shop of Karam Din. Earlier he had attributed only one blow to the appellant, but now he specifically referred to two blows, obviously with a view to bring it in conformity with the medical evidence. Again, he introduced for the first time in his attempt to apprehend the appellant and having thus sustained an injury on the back of is left thumb. (iii) It cannot be denied either that the two police statements of the complainant and his statement at the trial do contain some discrepancies. From his police statements, it appears that almost immediately after the occurrence when some people had gone in pursuit of the appellant, Muhammad Anwar complainant removed Fazal Elahi deceased to the hospital in an injured state, in the car of one Mian Abdul Sammad a resident of 88‑C Mayo Road, Lahore. But at the trial he clearly gave an impression that the pursuers had brought back the appellant to the spot while he was still at the spot and that Sarfraz (P. W. 9) was holding the blood?stained knife Exh. P. 1 in his hand, which was produced by Muhammad Sharif before the police with a claim to have himself snatched it from the appellant.

9. Having carefully considered the above facts, namely, the recording of the supplementary statements of the complainant, the improvements upon his police statements at the trial and the discrepancies, we are of the considered opinion that they are all capable of reasonable explanation and do not warrant the rejection of the testimony of this most important witness in the case. As stated earlier in those days of war, towards the commencement of curfew, people were in a rather agitated state of mind if not actually panicky. Suddenly confronted with, a critical situation involving serious apprehension to the life of his brother, which proved only too true, the complainant would be naturally quite nervous and as such having got his brother admitted in the hospital almost on point of death, he could not be expected to conduct himself in a calm and collected manner. No wonder, therefore, that he forgot to mention the names of Ghulam Hussain and Sarfraz P. Ws. which were subsequently supplied by him in Exh. D. A. The so‑called change in the venue of occurrence in the proximity of the shop of Ghulam Hussain (P. W. 10) is also immaterial inas?much as the place of occurrence stands established beyond doubt by the eloquent fact of the recovery of the ‑blood‑stained earth regarding which not a single question was put to the Sub‑Inspector. This coupled with the consistent statements of the P. Ws. leaves one in no manner of doubt that contrary to the impression conveyed by Exh. P. F. the occurrence did not take place near the house of the deceased, but near the shop of Ghulam Hussain (P. W. 10). It would also be pertinent to point out in this, context that the omission of their names in the first information,) report could not belie the claim of the other P. Ws. to be the D eye‑witnesses of the occurrence, if their presence would other,) wise be spelt out from the relevant circumstances. Siraj Din: v. Kala (P L D 1964 S C 26) may be cited as an authority in point: Considerable support is lent by the appellant's own admission before the Committing Magistrate to establish the fact that the P. Ws. had detained him at the spot and had later handed him over to the police. Another circumstance which further goes to establish the presence of these witnesses at the spot at the relevant time is the fact that on his arrival the Sub?-Inspector found them present at the spot and recorded their statements without delay. Further, they also attested the relevant recovery Memos. Exhs. P. A. and P. B. relating to the recoveries of knife Exh. P. 1. and blood‑stained shirt of the appellant Exh. P.

2. It thus stands proved beyond doubt that the appellant had already been arrested by F. C. Muhammad Yunus at the Shop of Ghulam Hussain where he was kept in detention when the Sub‑Inspector reached there. These facts coupled with the consistent and natural account of the occurrence given by these P. Ws. leaves us in no manner of doubt that they are witnesses of truth who had described only what they had actually seen. Again, the reference to proceedings under section 107/151, Cr. P. C. though introduced by the complainant for the first time in his supplementary statement Exh. D. A. stands established by documentary evidence available in the form of Exh. P. W. 14/1 supported by the testimony of S.I. Muhammad Sadiq (P. W. 1), Aftab Ahmad (P. W. 12) besides the admission of the appellant himself. An omission to make a reference to this in Exh. P. F. was, therefore, immaterial.

10. Coming now to the so‑called discrepancies in the statement of the complainant, the correct position seems to be that immediately after the occurrence he removed his brother to the hospital and it was in his absence that the appellant was apprehended by Muhammad Sharif and Sarfraz P. Ws. who brought him back to the spot where he was handed over to the police. His statement at the trial that he was brought back to the spot, while he was still there, and that blood‑stained knife Exh. P. I was in the hand of Sarfraz P. W. contrary to the assertion of Muhammad Sharif that it was in the latter's hand, is nothing but a lapse of memory on his part which would not justify an adverse inference as to his credibility, warranting total rejection of his testimony inasmuch as, the statements of Muhammad Sharif, Sarfraz and‑‑Ghulam Hussain are consistent on this point and do not support him.

11. In view of the above findings, the contention based on the so‑called improvements in the statement of Muhammad Sharif also loses much of its force. This witness is an absolutely disinterested witness and has successfully stood up to cross‑examination without having been shaken in the least. Notwithstanding the so‑called improvements upon his statement before the Committing Magistrate, the over‑all impression that one gathers from his testimony is that he was not only present at the spot, but played an important role in apprehending the appellant after a hot pursuit and over‑powered him. The account given by him has undoubtedly a ring of truth and the learned trial Judge had rightly placed reliance on his testimony. Likewise we see no reason to doubt the veracity of Ghulam Hussain and Sarfraz P. Ws. who appear to be quite natural witnesses and whose presence at the spot cannot be seriously disputed. It is common knowledge that in those days people would usually gather in a shop where a transistor‑radio would be available in order to have a thrill of the war songs or to listen to bulletins of war‑news intermittently broadcast throughout.

12. The contention relating to the possibility of the appellant's case falling within Exception 2 relating to the right of private defence or in the alternative Exception 4 dealing with a case of a sudden and unpremeditated quarrel is patently devoid of force. From the facts on the record the impression that one gathers about the appellant is that the allegations against him of having forcibly subjected Abdul Ghafur P, W. to carnal intercourse are not without basis. No appears to be a man of an aggressive nature as borne out by proceedings under section 107/151, Cr. P. C. against him. Before the Committing Magistrate he admitted his having visited the house of the deceased at the relevant time with a view to contact Ghafoor with whom he never denied his friendship, even at the trial, although he had materially resiled from his statement before the Committing Magistrate. His insistence on knowing about the whereabouts of Abdul Ghafur, and having flared up on the deceased's inability to make Ghafur readily available to him, in the background of the case quite stands to reason. He took the initiative, picked up a quarrel, whipped out a clasp knife with which he had gone armed and inflicted two blows on the deceased, one of which proved fatal. He even inflicted an injury on the hand of` the complainant. There is not an iota to suggest, therefore, that by any stretch of imagination could his case be brought within the purview of the second or fourth Exception to section 300, P. P. C. The contention, therefore, appears to be simply absurd and is not worthy of a moment's consideration.

13. Likewise, the plea for the award of lesser penalty of transportation is devoid of substance, there being no mitigating circumstances to justify the same. We are clearly of the view, that the appellant merited the extreme penalty of death which was rightly awarded to him by the learned Additional Sessions Judge. In consequence the appeal fails and is hereby dismissed. The sentence of death is accordingly confirmed.

14. Before parting with this case, however, we could like to make one or two observations. In the earlier part of the judgment we have already referred to an omission on the part of the learned Additional Sessions Judge to get formally proved and exhibited the F. I. R. to which nevertheless, a reference was made in the judgment as "the formal F. I. R. Exh. P, F./1". Again the sketch of the knife Exh. P. R. and application for remand Exh. D. C. though duly brought on the record and mentioned in the judgment were neither mentioned, nor included in the list of exhibits, and still form part of the record of the Court of Inquiry Magistrate from which they should have been taken out. Appeal dismissed.