The petitioner is complainant of case FIR No, 290 dated 1.9.2006 registered under Section 302 PPC at the Police Station Taxila District Rawalpindi. This was an FIR regarding the murder of son of the complainant namely Faizan Ali. The challan of the case has since been put up and the trial is in progress.
2. The wife of the petitioner, who of course is the mother of the deceased, seems to be an adversary of the complainant regarding certain circumstances of the case including the nomination of the accused persons. In the FIR as originated by the petitioner as complainant, he stated that, he had no enmity with any body and that his son had been done to death by un-known persons. The wife the complainant namely Mst. Nasim Bibi had a different version which she put forwarded during the investigation and nominated Hassan Ali and Mst. Gull Bibi as accused for the murder of his son Faizan Ali Shan. These two accused persons namely Hassan Ali and Mst. Gull Bibi are presently facing the trial.
3. The said Hassan Ali and Mst. Gull Bibi are respectively the real nephew and niece of the complainant Syed Matloob Hussain Shah. The case of Mst. Nasim Bibi, mother of the deceased, is that the omission on the part of the complainant to nominate these two accused was intentional and even during the trial the complainant was determined to favour them, as he has been won over by them and was likely to spoil the prosecution case.
4. With this back ground Mst. Nasim Bibi moved an application before the learned trial Court seeking permission to allow the prosecution to give-up Syed Matloob Hussain Shah complainant as a !witness in this case. After notice to the prosecution as well as to the accused and their counsel and after hearing the arguments of both the parties, the application of Mst. Nasim Bibi was accepted by the learned trial Court through the order dated 20.3.2008 impugned in the present criminal revision.
5. The learned counsel for the petitioner Syed Matloob Hussain Shah/complainant relied upon the case of Faqir Ullah Versus Khalil-uzZaman and others (1999 SCM R 2203) and argued that the petitioner being the complainant and Wali in the case of murder of his son was an inevitable prosecution witness who could not be given up and that the impugned order of the learned trial Court was not only violative of the law but also contrary to the principles and injunction of Islam. It was further argued by him that the petitioner was the originator of the FIR and as such his version could not be kept aside during the trial and decision of the case. According to the learned counsel the proceedings taken to the exclusion of the complainant shall be void and without lawful justification as well to the detriment of the case of the prosecution. It was also contended that the complainant oould not be allowed to be given up merely on the allegations of Mst. Nasim Bibi who is neither the complainant nor a witness of the case and thus had no locus stanch to file the application before the learned trial Court on which the impugned order was passed.
6. It is true that the FIR was lodged by the petitioner Syed Matloob Hussain Shah regarding the murder of his son. Mst. Nasim Bibi had intervened in the proceedings of investigation by an application dated 6.10.2006 i,e, after about one month of the occurrence wherein she specifically nominated Hassan All and Gull Bibi as accused for the murder of her son Faizan Ali Shah.
7. Be that as if may, and keeping the factual controversy aside, the prosecution has a right to take a decision as to what evidence is needed by it in support of its case. This principle is not limited to the prosecution alone but is actually applicable to all the parties to a litigation. It is for the concerned party to decide as to what evidence would be needed by it and what evidence would it be producing in support of its contention or version in the case. The stance taken by Mst. Nasim Bibi has duly been supported and adopted by the prosecutor.
8. The submission of application by her and the consequential involvement of Faizan Ali Shah and Mst. Gull Bibi did provide her a right and locus standi to be watchful of the proceedings of the case of the murder of her own son. Her position is virtually no less than that of a complainant of the case. The father of the deceased despite being the "complaint" of the FIR is not prosecuting any person including the accused facing the trial nor has he provided any material to prosecution during investigation. Therefore, to say that he alone as a complainant has a right to be at the helm of the affairs of the prosecution is not correct.
9. By the mere fact that Syed Matloob Hussain had lodged the FIR, the prosecution is not obliged to produce him as a PW if it feels that he has taken steps (such as giving affidavit is favour of accused) prejudicial to the persecution case, it has an option under the law to give him up. There shall of course be no bar on the accused to call the complainant in defence evidence or even on the complainant to seek his rights, if any, available under the law for being a witness to the case after he has been given up as such by the prosecution. If during the trial the Court at any stage comes to the conclusion that the evidence of the said complainant is essential to the just decision of the case it can summon and examine him as a witness and the permission granted by it to the prosecution to give him up shall not be a bar to such summoning.
10. It cannot be denied that FIR is not a substantive piece of evidence. Mere mentioning of a name of a person in the FIR without other evidence in the case would not be sufficient to connect him with the crime nor the omission to give the name of an accused would mean that inspite of such evidence as may subsequently come on record, such accused person cannot be put to trial. The object of the FIR is to obtain an early information of an alleged criminal activity. It simply puts the machinery of law in motion for investigation and determination of the facts of the case.
11. If the name of a person is not given in the FIR as an accused, the inference that can be drawn there from varies from case to case. The non-mentioning of the name of an accused may be an important fact but such omission if properly explained can help the case proceed in proper direction. The law would only demand necessary and reasonable explanation for such an omission.
It is thus for the prosecution to explain as to how why and in what circumstances it intended to proceed with the version of Mst. Nasim Bibi. As the complainant is not nominating any accused and has instead sworn affidavit in favour of the accused nominated by the mother of the deceased and since sent up for trial by the prosecution, the application for giving him up as a PW could well to be justified on the first of Mst. Nasim Bibi and the prosecution.
12. When the FIR is not made by an eye-witnesses or the complainant does not maintain an accused or where a version different or contrary to the one given by the complainant is in the field, the probability of the case is to be determined by the quality of such evidence as may be produced on facts different to those mentioned in the FIR and even the conviction can be based on this evidence if the version in a form different to the FIR is proved in accordance with law.
13. The upshot of the above discussion is that the impugned order does not suffer from any illegality or material irregularity warranting interference in exercise of the revisional jurisdiction of this Court.
14. The petition is, therefore, dismissed in limine.