PLJ 2008 SC 269

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, Nasir-ul-Mulk,

Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.

AKHTAR ALI & others--Appellants

versus

STATE--Respondent

Crl. A. Nos. 274 & 275 of 2003, decided on 17.9.2007.

(On appeal against the judgment dated 11.3.2002 passed by the Lahore High Court, Lahore, in Crl. Appeal No. 917 of 1998 & 1043 of 1998, M.R. 242-T/98 & Cr. A. 98-J/98).

Eye-witness--

----Appreciation of evidence--Eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. [P. 274] D

PLJ 1976 SC 29 rel.

Ocular Evidence--

----It is also a settled law that credibility of the ocular evidence is not divisible. [P. 275] E

PLD 1959 P.C. 24.

Maxim--

----Credibility of statement--When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dis-honestly--Held: Credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. [P. 275] F

Delay in FIR--

----Principle--FIR was lodged after considerable delay of 10/11 hours--Delay in lodging of FIR provides sufficient time for deliberation and consultation--Held: Possibility cannot be ruled out qua false implication of the accused. [P. 275] G

Delay--

----Delay of 10/11 hours in making FIR not explained leads to inference that occurrence was un-witnessed. [P. 275] H

FIR--

----Principle--Unexplained delay in registration of FIR specially in the circumstances of the case creates lot of doubt qua the story of the prosecution. [P. 275] I

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302 & 34--Criminal Procedure Code, (V of 1898), Ss. 154, 156 & 161--Conviction and sentence--Challenge to--Benefit of doubt--Contents of FIR and supplementary statement were put in a juxta position that prosecution had taken U-turn from his previous stand--Such fact created doubt in the prosecution story and the fact was not considered by High Court--Validity--It is an improvement made by the complainant in the supplementary statement, the statement of the complainant involving the appellants in the case was obviously false and no reliance can be placed therein in view of all attending circumstances available on the record and High Court was therefore, not justified to upheld the sentence of the appellants--Held: Conviction of the appellants was not sustainable in the eye of law--High Court had erred in law to uphold their conviction--Evidence re-examined in the interest of justice and fairplay--Defence plea appeared to be reasonable and appellants were entitled to the benefit of doubt as of right and not as a matter of grace as prosecution has not proved its case against appellants beyond any shadow of doubt--Appeals allowed. [Pp. 274, 275 & 276] A, B, C, K & L

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 154 & 156--FIR--Criminal trial--FIR is the document which is entered into u/S. 154 of Cr.P.C. book maintained at the police station at the application of the complainant--Police u/S. 156, Cr.P.C. started investigation of the case--Further statement of the complainant recorded during investigation by the police would neither be equated with FIR nor read as part of it, therefore subsequent supplementary statement is also considered as statement recorded u/S. 161, Cr.P.C. which is not sign or thumb marked. [P. 276] J

Mr. Iqbal Bhatti, ASC for Appellant (in Cr.A. No. 274/03).

Mr. Jehanzeb Tamman, ASC for Appellants (in Cr. A. No. 275/2003).

Ms. Yasmin Sehgal, DPG for State.

Date of hearing: 17.9.2007.

Judgment

Ch. Ijaz Ahmed, J.--We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore High Court dated 11-3-2002 wherein Cr.Appeal No. 1043/1998 and Cr.A. No. 917/1998 filed by the appellants against their conviction were dismissed. The detailed facts have already been mentioned in para 2 of the impugned judgment. However necessary facts out of which the aforesaid appeals arise are that the appellants alongwith their acquitted co-convict namely Muhammad Asharf alias Papoo, Waris Ali, Niaz Hussain alias Naja, Mushtaq alias Makha and Majid alias Maujoo were involved in a case FIR No. 189/98 which was registered at Police Station Jaranwala District Faisalabad on 9-2-1998 under Sections 302/452/394/397/449/109/34 PPC for the murder of Muhammad Mushtaq and Sadiq Ali. The Investigating Agency investigated the matter and submitted challan against the appellants and 5 others before the competent Court. The learned trial Court (learned Special Judge, Special Court of Anti-Terrorism (Punjab), Faisalabad Division, Faisalabad) vide its judgment dated 26-9-1998 convicted and sentenced the appellants as under:--

Name of accused Under Section Sentence

Muhammad Ilyas 302/34 PPC Death punishment as

Arshad alias Neela tazeer on each count

Akhtar Ali with a fine of Rs.

Majid alias Maujoo 50,000/-. In case of

default of payment of

fine they have to

undergo 6 years' R.I. In

case if fine is recovered

the same shall be paid to

legal heirs of both the

deceased as compen-

sation.

-do- 449 PPC Life imprisonment each

with a fine of Rs.

10,000/- each. In default

of payment of fine they

have to undergo further

R.I. for 6 years.

-do- 393 PPC Seven year's R.I. each

with a fine of Rs.

10,000/- each. In default

of payment of fine 2

years' R.I. Fine if

realized will be paid to

the legal heirs of both

the deceased.

-do- Under Section Death punishment for

7 of Anti- each count with a

Terrorism fine of Rs. 50,000/-

Act, 1997 each. In default 6

years' R.I.

Muhammad Ashraf 109 PPC read L.I. each

alias Pappoo with 302 PPC

Niaz Hussain alias Naja

Mushtaq alias Matlha

Waris Ali

-do- 109 PPC read Two years' R.I. each

with 393 PPC

All the sentences shall

run concurrently with

benefit of Section 382(B)

Cr.P.C.

2. Appellants and their co-convict being aggrieved filed Criminal Appeal No. 1043/1998, Cr.A. No. 917/1998, Cr.A. No. 98-J/1998 and Cr.A. No. 163-J/1998 in the Lahore High Court. The learned High Court dismissed the appeals of the present appellants vide impugned judgment dated 11-3-2002 whereas learned High Court had accepted the appeals of their co-convict through the impugned judgment. Appellants being aggrieved filed Criminal Petition No. 360-L/2002 and J.P. No. 154/2002 before this Court which were fixed on 22-9-2003. Leave was granted in the following term:--

"We ex-facie are of the view that contentions raised by the learned counsel for the petitioners need reappraisal of evidence in the light of principles laid down by this Court for safe administration of criminal justice. Accordingly leave to appeal is granted to re-appraise the evidence in the light of the contentions raised."

3. The learned counsel of the appellants submit that the complainant Hidayatullah PW 14 met Barkhurdar Ahmad Inspector/SHO Police Station Jaranwala at Jhal Boota-e-Wala who recorded his statement on 9-2-1998 regarding the incident in question. The complainant did not nominate any person in his statement as is evident from contents of Ex. PJ which was read over to him and the complainant had signed it in token of its correctness and formal FIR was registered. The complainant Hidayatullah PW.14 also got his supplementary statement recorded wherein he had introduced altogether new story by nominating appellants and acquitted co-convict of the appellants with specific role and specific injuries were attributed to them which were inflicted by them to both the deceased. They further maintain that learned High Court had erred in law to maintain the conviction of the appellants without adverting to the following circumstances arising out of the evidence on record:--

(a) Appellants were not named in the FIR wherein it was specifically mentioned that unknown four persons had committed offence.

(b) FIR was lodged after delay of 10/11 hours.

(d) Inspite of the presence of the Akhtar Ali at Dera, his name was not mentioned in the first statement of the complainant PW14 and in formal FIR.

(e) Reasons advanced by the learned High Court did not appeal to the common sense that the complainant could not be expected to behave like a normal person whose two real brothers were murdered and was not controlled in senses. Therefore, his non mentioning the names of the appellants in his first statement before PW 16 Inspector/SHO could be condoned.

(f) Prosecution evidence is full of contradictions and this fact was not considered by the learned High Court in the impugned judgment in its true perspective.

(g) The prosecution story was accepted without application of mind in violation of the dictum laid down by this Court and rejected the defence version without putting the same in juxta position with the prosecution story.

(h) Empties were recovered on 9.2.1998 and the gun was recovered on 21.2.1998 which was sent on 24.2.98 to Forensic Science Laboratory, therefore, learned High Court was not justified to rely the report of F.S.L.

(i) The learned High Court had acquitted their co-convict Majeed on the basis of same evidence and there was no independent corroboration to connect the appellants with the commission of offence.

4. The learned Deputy Prosecutor General has supported the impugned judgment.

5. We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that the complainant PW14 did not mention name of the accused persons in his first statement which was recorded by the Inspector/SHO PW16 and formal FIR was recorded. According to which four unknown persons had committed the offence whereas the complainant had nominated the appellants and his acquitted co-accused in his supplementary statement before the Investigating Officer on the same day coupled with the fact that Akhtar Ali convict was also residing in the same Dera where the occurrence had taken place. In case the contents of the first information report and supplementary statement are put in a juxta-position then it is crystal clear that the complainant had taken altogether U Turn from his previous stand. This fact creates doubt in the prosecution story and this fact was not considered by the learned High Court in its true perspective in the impugned judgment. It is, therefore, established that the name of the appellants alongwith their acquitted co-convict did not appear in the FIR, therefore, it is an improvement made by the complainant in the supplementary statement, therefore, the statement of the complainant involving the appellants in the case is obviously false and no reliance can be placed therein in view of all attending circumstances available on the record and learned High Court was, therefore, not justified to upheld the sentence of the appellants. See Muhammad Rafique's case (1994 SCMR 1169), Qalab Ali's case (2005 SCMR 1857), Rahab's case (2001 SCMR 1745), Rahab's case (2002 SCMR 233) and Khalid Javed's case (2003 SCMR 1419). We have also re-examined the record in the interest of justice and fair play qua the finding regarding guilt of the appellants whereas the learned High Court had acquitted their co-convict namely Majid alias Maujoo who was also awarded death sentence having same role attributed to him as assigned to the present appellants. The learned High Court had acquitted one convict of the appellants mentioned above and upheld the sentence of the appellants without highlighting any independent corroboration available on record qua the appellants so that the case of the appellants could be distinguished from the acquitted co-convict. It is pertinent to mention here that the learned High Court had also acquitted four other co-convicts as mentioned above on the basis of same evidence who were involved by the complainant in his supplementary statement that convicts had committed the offence with the connivance of the four aforesaid acquitted co-convicts. It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLJ 1976 SC 29), Sheral alias Sher Muhammad's case (1999 SCMR 697) and Ata Muhammad's case (1995 SCMR 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 P.C. 24), Nadia's case (42 Cr. LJ 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCMR 651) and Muhammad Afsar's case (PLD 1954 FC 171). It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dis-honestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dis-honest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case (PLD 1963 Kar. 805). It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The FIR was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was un-witnessed. In the case in hand this fact is also established in view of supplementary statement and conduct of the eye witnesses. It is also a settled law that un-explained delay in registration of FIR specially in the circumstances of the case creates lot of doubt qua the story of the prosecution specially the stand taken by Akhtar Ali accused while replying Question No. 10 which is to the following effect:

"Q.No. 10. Why this case against you and why the PWs has deposed against you?

Answer. All the PWs of this case are interse related and also with the deceased. There were illicit relations between Zaib-un-Nisa daughter of the complainant and one Master Sharif who was influential and his real brother is in police Department. In fact I used to restrain not to continue relation with Zaib-un-Nisa and her relations with Master Sharif but Mst. Zaib-un-Nisa and her relative felt annoyed since it was a blunt/blind murder. Mst. Zaib-un-Nisa and her relatives in consultation with Master Sharif and his brother (Police Official) roped me into this false case."

6. It is also a settled law that FIR is the document which is entered into under Section 154 Cr.P.C. book maintained at the police station at the application of the complainant. It brings the law into motion. The police under Section 156 Cr.P.C. started investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with FIR nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under Section 161 Cr.P.C. which is not signed or thumb marked as held by this Court in Khalid Javed's case supra. The learned High Court had misread the evidence on record in violation of the dictum laid down by this Court in various pronouncements as mentioned above, therefore, conviction of the appellants is not sustainable in the eyes of law. The learned High Court had erred in law to uphold their conviction. We have re-examined the evidence in the interest of justice and fair play, as mentioned above, we are of the view that the defence plea appears to be reasonable, therefore, appellants are entitled to the benefit of doubt as of right and not as a matter of grace as prosecution has not proved its case against the appellants beyond any shadow of doubt. See Nadeem-ul-Haq's case (1985 SCMR 510), Chandoo's case (1986 SCMR 720).

7. For what has been discussed above, the appeals are allowed Convicts, Akhtar Ali, Muhammad Ilyas and Arshad alias Neela are acquitted of the charge and set at liberty forthwith, if they are not required in any other case.

(A.S.) Appeals allowed.