1. ' JUSTICE MUHAMMAD RAFIQ TARAR, (CHAIRMAN)--- Saifullah Sub-inspector Police was convicted by the learned Special Court for Speedy Trials under section 194 of the P.P.C. And sentenced to R.I. For five years and a fine of Rs,5,000 or in default in the payment thereof to undergo further R.I. For one year. He has appealed.
2. The appellant was investigating officer in case F.I.R. No, 76/1991 dated 4-5-1991, under section 302, P.P.C., Police Station, Badami Bagh, Lahore. He was tried on the allegation that during the investigation of that case he fabricated false evidence against the accused. The charge framed against him reads as under:-- "That, on 4-5-1991, during your posting as Sub-Inspector, Police Station, Badami Bagh, Lahore, you recorded statements of Jamshed Iqbal, Faisal and Mohsin Akram Butt P.Ws under section 161, Cr.P.C.
2. In the original case diary in case F.I.R. No, 76/91 dated 4-5-1991 and then on or about 4-5-1991, you fabricated false evidence by recording the statements of said three witnesses as the original statements recorded in the case diary were inconsistent with the medical evidence and you fabricated false evidence by recording the statements of the said three witnesses afresh with the intention of procuring the conviction of the accused in murder case and thereby you committed offence under section 194, P.P.C. Which is within the cognizance of this Court."
3. ' At the trial the learned Public Prosecutor tendered "record of judicial case F.I.R. No, 76/91 dated 4- 5-1991 under section 302/34, P.P.C. Police Station, Badarni Bagh, Lahore against Naeem Malik and others including statements". He also tendered "original police file of the said case containing statements of Jamshed Iqbal, Faisal and Mohsin Akram Butt Exh. DC, C3 and C4." He also tendered "carbon copy of police file containing statements of Jamshed Iqbal DB, Faisal, and Mohsin Akram Butt C2" and closed the case for the prosecution. It will thus be seen that no witness was examined by the prosecution.
4. ' The record of the examination of the appellant under section 342 of the Cr.P.C. Is not available on the file. Perusal of the judgment however reveals that he was examined, and whatever he stated has been reproduced in the impugned judgment. It reads as under:-- "Q. Is it correct that, on 4-5-1991, you were posted as Sub-Inspector Police Station Badami Bagh?
5. A. Yes. This is correct. Q. Is it correct that, on 4-5-1991, you recorded the statement of Ansar Iqbal Exh. PI?
6. A. Yes. This is correct. Q. Is it correct that according to the statement of Ansar Iqbal Exh. PI, Naeem and Nadeem accused had fired shots at him with mausers. A. Whatever was stated by Ansar Iqbal, it was correctly recorded by me. Q. Is it correct that according to medical evidence of Dr. Arshad Ali, four injuries to Ansar Iqbal had been caused with sharp-edged weapon?
7. A. Whatever was stated by the doctor, I recorded it. Q. Is it correct that statements of Jamshed Iqbal Exh. DC Faisal C3 and Mohsin Akram Butt D4 in the original case diary are in your hand?
8. A. Yes. This is correct. These statements are in my hand.
9. Q. Is it correct that according to the statements of the said witnesses recorded in the case diary, it was mentioned that Naeem and Nadeem were armed with fire-arms probably mausers and they started firing shots indiscriminately?
10. A. Whatever was stated by the said witnesses, it was correctly recorded by me. Q. Is it correct that the statements of Jamshed Iqbal Exh. DB, Faisal and Mohsin Akram Butt Exh. C2 recorded in the carbon copy of the case diary dated 4-5-1991 are in your hand?
11. A. These statements are in my hand but I omitted to mention "supplementary statements" over the said statements. Q. Is it correct that according to these statements, Naeem and Nadeem were armed with Chhuris and 32 bore pistol and Nadeem inflicted Chhuri blow whereas Naeem fired shots at Ansar Iqbal which caused injuries?
12. A. Yes. This is correct. Whatever the witnesses stated it was correctly recorded by me. Q. Is it correct that in order to secure the conviction of the accused in a murder case, you fabricated abovementioned documents?
13. A. It is incorrect. Whatever was stated by the witnesses, I correctly recorded. Q. Will you produce evidence in defence? A. Yes.
14. Q. Will you make statement on oath in disproof of the charges and the allegations levelled against you by the prosecution?
15. A. Yes."
16. ' Statement of Saifullah Sub-Inspector (On oath): ' I conducted the investigation of the case. I would write down the statements correctly. I would record the statement whichever would be made before me. I conducted investigation honestly. The case was also investigated by Capt. Zubair ASP Nawan Kot and he verified my investigation. I am innocent.
17. ' By PP. ' It is incorrect that I dishonestly recorded the statements of Jamshed Iqbal, Faisal and Mohsin Akram Butt in order to explain the injuries of Ansar Iqbal which had been caused by sharp-edged weapon."
3. Learned counsel for the appellant contends that no witness was examined against the appellant and the documents tendered by the Public Prosecutor particularly the police file containing disputed statements of Jamshed Iqbal, Faisal and Mohsin Akram Butt being inadmissible it is almost a case of no evidence. He further submits that independent and reliable defence evidence was brushed aside without assigning any cogent reason. The learned counsel for the State on the other hand supported the impugned judgment.
4. The charge against the appellant was that since the statements of Jamshed Iqbal, Faisal and Mohsin Akram Butt P.Ws. In the murder case recorded under section 161 of the Cr.P.C. In the first instance were inconsistent with the medical evidence, therefore, he fabricated false evidence by changing their statements with the intention of procuring the conviction in the murder case. The appellant denied the allegation and stated that he recorded their statements twice. He claimed that the statements recorded subsequently were in fact made by the aforesaid witnesses but he omitted to describe them as supplementary statements. Recording of supplementary statements during the investigation of a criminal case is not a rare phenomenon. The witnesses do make supplementary statements before the investigating officer when they feel that they have missed something while making the earlier statement and sometimes also to improve the case. Jamshed Iqbal, Faisal and Mohsin Akram Butt P.Ws. In the murder case were not produced by the prosecution to substantiate the allegation that in their statements under section 161 of the Cr.P.C.
18. They had stated that Naeem and Nadeem accused in the murder case had caused injuries with mausers and later on their statements were changed to read that Nadeem was armed with Churri and Naeem had a pistol and they caused injuries to Ansar Iqbal with their respective weapons. The appellant examined six witnesses in his defence including aforesaid Jamshed Iqbal who was declared hostile. In cross-examination he stated "I did not state before Saif Ullah SI that Naeem and Nadeem were armed with mousers and then changed my statement and stated that Nadeem was armed with Chhuri while Naeem with mauser". D.W.3 Azad Hussain FC who accompanied the appellant to Mayo Hospital where the statement of Ansar Iqbal was recorded stated that the "three witnesses first disclosed that two accused were armed with mousers but in their supplementary statements, they disclosed that one was armed with mauser while the other with Chhuri". The above statement was not seriously challenged in cross-examination. Thus the explanation offered by the appellant that the subsequent statements were supplementary statements find support from the statement of Azad Hussain referred to above and there is a reasonable possibility of its being true. We, therefore, give benefit of doubt to the appellant and acquit him of the charge.