1. ' Muhammad Ibrahim son of Nawab, caste Khokhar Mochi, resident of Aliabad, Chak No, 112/RB, Police Station Sangla Hill, District Sheikhupura, was tried for the murder of Muhammad Hussain. The trial Judge, by judgment dated 28-11-1985, convicted him under section 326, P.P.C. He was sentenced to five years' R.I. And fine of Rs, 2,000 or in default to undergo further six months' R.I.
2. ' The convict has appealed to this Court. The complainant has filed revision (Criminal Revision No, 24 of 1986), which has been ordered to be heard alongwith this appeal. Both matters are being decided by this judgment.
3. ' The occurrence in which the appellant is involved, was alleged to have taken place on 2-6-1982 at 8-00 a.m. In village Aliabad (Chak No, 112/RB.).
4. ' Mst. Haideran Bibi, wife of the deceased lodged the First Information Report at Police Station Sangla Hill the same day at 10-00 a.m.
5. ' This case has certain peculiar circumstances which were not brought to my notice during arguments. While I was going to dictate the judgment, I came across those facts on my own. I, therefore, ordered re-hearing.
6. ' Arguments were heard again on 16-7-1986. On the said date only counsel for the appellant appeared. Mr. Farooq Bedar, Assistant Advocate-General was away to Rawalpindi. Learned counsel for the complainant did not turn up although his name appeared in the cause list.
7. ' The following are the facts which I noticed while going through the record.
8. ' On- 2-6-1982, Mst. Haideran Bibi lodged report at Police Station Sangla Hill. It was recorded by A.S.I.
9. Muhammad Sharif. She was not satisfied with that report. Her grievance was that the police wrongly mentioned Muhammad Latif and Abbas as eye-witnesses. They were relatives of the appellant. She had mentioned different names. She, therefore, did not pursue the First Information Report.
10. ' On 8-9-1982, she filed a complaint under section 302, P.P.C. Against the appellant, in the Court of Sessions Judge, Sheikhupura. The Sessions Judge recorded her statement and forwarded the complaint to the Magistrate for enquiry under sectoin 202, Cr.P.C. The Magistrate recorded the statements of four witnesses, namely, Muhammad Yousaf, Akhtar Iqbal, Abdur Rehman and Muhammad Akmal. He submitted his enquiry report alongwith the complaint and statements of the witnesses and was of the view that a prima fade case had been made out .Against the appellant.
11. The Sessions Judge was transferred. The matter came up before' his successor, who by his order dated 8-117.1982, held all the proceedings null and void. He was of the view that the complaint should have bee A filed before the Ilaqa Magistrate. He, therefore, ordered that the complaint be returned to Mst. Haideran for presentation to the proper Court.
12. ' There is nothing on record to show that the complaint was returned to Mst. Haideran. However, she filed the second complaint (Exh. P.H.) before the Ilaqa Magistrate.
13. ' The second complaint is neither signed nor thumb marked. It is not even dated. The court-fee stamp affixed on the complaint is dated 21-11-1982.
14. ' The Magistrate on 21-11-1982 wrote down on the first page of the complaint that the case was complete in all respects; the offence was triable by the Sessions Judge. He, therefore, directed the complainant to appear before the Sessions Judge on 1-12-1982.
15. ' On 3-1-1983, the Sessions Judge recorded the statement of the complainant and sent the complaint to the Magistrate under section 202, Cr.P.C. For enquiry.
16. ' The Magistrate held enquiry as envisaged by law. By his order dated 14-2-1983, he found that there were reasonable grounds to proceed against the appellant under section 302, P.P.C. He forwarded the case to the Sessions Judge with his report. The matter then came up before the Sessions Judge.
17. ' The Sessions Judge agreed with the report of the Magistrate and by his order dated 16-2-1983 issued process against the appellant.
18. ' The appellant appeared before the Sessions Judge when it transpired that the police challan against the appellant was pending in the Court of Ch. Anwar Ali, Additional Sessions Judge. The complaint of Mst. Haideran was accordingly transferred to the said Court.
19. ' On 3-9-1983, the charge was read out to the appellant. He pleaded not guilty and preferred to face the trial.
20. ' Prosecution examined Mst. Haideran and Abdur Rehman as eye-witnesses. Abdur Rehman also deposed about the recovery of licensed gun of the appellant.
21. ' Dr. Muhammad Aslam, Medical Officer, proved the post-mortem report, dated 3-6-1982. Reports .Of the Fire Arms Expert, Chemical Examiner and that of the Serologist were tendered in evidence.
22. ' The appellant in his statement under section 342, Cr.P.C. Gave his own version of the incident, the gist of which is that he had killed the deceased, but not murdered him. This was done by him unde4 grave and sudden provocation. According to him, the son of the deceased was forcibly taking away his (appellant's) wife. He fired at the son, but the father was hit accidently as a result of which he died. ' shall refer to his statement in detail later on.
23. ' Mst. Haideran deposed before the trial Court that the deceased was her husband and Zafar Iqbal her only son. Ibrahim agreed to give the hand of his daughter in marriage to Zafar Iqbal. Zafar Iqbal went to Saudis. He got fixed up there. Thereafter he started sending a portion of his income to his would-be father-in-law, i.e. The appellant.
24. ' Zafar lqbal returned from Saudi Arabia after three years and eight months prior to the occurrence.
25. On his return, Mst. Haideran enquired from the appellant about the Rishta of his daughter. Ibrahim refused. His wife Mst. Khamsa agreed. This development took place before the occurrence.
26. ' Regarding the actual incident, Mst. Haideran stated that at about night time (she did not give the time) Irfan son of Ibrahim called on Zafar Iqbal. He took him to his house and made him sit in the Baithak. Wife of Ibrahim joined Zafar Iqbal. Both started talking. Door of the Baithak was closed from outside by the appellant. Mst. Haideran thereafter heard some shots being fired. According to her, those were by the appellant and his son-I n-law, Asghar Ali.
27. ' Zafar Iqbal, however, broke open the dbor on 2-6-1982 in the morning and escaped alongwith Mst.
28. Khamsa, wife of the appellant.
29. ' On 2-6-1982, at 8-00 a.m., Mst. Haideran alongwith Akram and Muhammad Hussain, was present in her house Muhammad Hussain went out of the house. Mst. Haideran and Akmal were standing in the house. Muhammad Hussain had hardly walked a distance of ten-fifteen feet from his house when the appellant came out armed with a shot gun from the house of his brother Ismail. He straightened his gun at Muhammad Hussain and enquired about Zafar Iqbal. He was told by Muhammad Hussain that Zafar Iqbal had been called by him (appellant) on the preceding night and since then he had not returned to his house. Thereupon, Ibrahim fired at Muhammad Hussain.
30. He fell down and died.
31. ' 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.
32. ' 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.
33. The other eye-witness is Abdur Rehman. He corroborated the tatement of Mst. Haideran. He also deposed about the recovery of gun t the instance of the appellant.
34. ' Dr. Muhammad Aslam, Senior Medical Officer, D.H.Q. Hospital, heikhupura, conducted the post- mortem of Muhammad Hussain. He oticed 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 I 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.
35. ' In the opinion of the doctor, the cause of death was shock and haemorrhage because of injuries Nos. I to 3, caused by fire-arm. These injuries were sufficient to cause death in the ordinary course of nature.
36. ' 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.
37. ' 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 recover and said that he had himself produced his licensed gun. In reply t. The question why this case was against him and why the P.Ws. Depose 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."
38. ' 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 Mst. Khams: Bibi together sitting in my outer Baithak. I was suddenly provoke and lost my sense. Zafar Iqbal held my wife by her arms an started taking her away forcibly at pistol point towards hi house, and on my alarm Muhammad Hussain, deceased, cam 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."
39. ' The appellant did not produce any evidence in defence. He only tendered certified copy of judgment (Exh. D.C.), whereby Zafar Iqba son of the deceased had been convicted under section 13 of the Arm Ordinance, 1965, for keeping an unlicensed pistol in his custody ' Mst. Haideran, complainant, was examined thrice on oath. Thi was in addition to the report lodged by her with the police. The Firs Information Report was lodged on 2=6-1982. The first complaint wa filed on 8-9-1982. Thereafter she filed a second complaint. This neither dated nor thumb marked or signed by her. The trial Judge di take notice of the fact of the complaint being unsigned and undate but he did not attach any importance to it. He observed that it wa not necessary in law that a complaint must be signed by the complainant Learned counsel also did not take this aspect seriously. But in m view that is not to be taken so lightly.
40. ' Learned counsel for the appellant argued that Mst. Haider was not an eye-witness. Her evidence amounts to hearsay. Hence h statement is to be discarded.
41. ' Learned counsel further submitted that the story given by Ms 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.
42. ' According to the learned counsel, there was inordinate delay in filing the complaint and lodging the F.I.R.
43. ' 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 with_ --s being a relative of- the complainant. Initially he was cited r, -overy 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.
44. ' Learned Assistant Advocate-General argued that the appellant deserved to be convicted under section 302, P.P.C. And sentenced to imprisonment for life.
45. ' 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.
46. ' The delay in filing the first complaint which was filed afte 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 I not only detrimental to the prosecution case but also beneficial to the appellant.
47. ' 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.
48. ' 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.
49. ' 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.
50. 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 to the statement of Mst. Haideran then the important eye-witness was Akmal. Prosecution gave him up as unnecessary, although I think he was a necessary witness.
51. ' 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 Iqba] was called to the house of the appellant, although the F.I.R. Was lodged promptly.
52. 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.
53. 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.
54. ' The result is that the prosecution has miserably failed to prove its case against the appellant.
55. ' 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."
56. ' 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".
57. ' According to the aforesaid provisions, a Magistrate is competent to take cognizance even on a verbal information.
58. ' 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.
59. But when a complaint is filed, I am of the view that it I necessary for the authors to put down his signatures as well as th 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.
60. ' 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.
61. ' 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?
62. ' 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 ca arise only when there is a reliable prosecution version. But when th posecution story is neither authentic nor reliable and has been outrigh 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 principl of administration of criminal justice is that onus always remains on the prosecution to prove its case. I am fortified in this behalf by th decision of the Hon'ble Supreme Court of Pakistan in Ilahi Bakhsh and another v. State 1969 SCMR 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."
63. ' 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.
64. ' 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.