FALAK SHER ALIAS SHERU Versus STATE

MIR HAZAR KHAN KHOSO, J.‑‑‑ Appeal by leave of this Court is directed against the judgment dated 15‑12‑1992 passed by the Federal Shariat Court whereby appeal filed by the appellant and his two other co‑convicts was partly accepted, their conviction under section 397, P.P.C. was modified to section 395/34 read with section 397, P.P.C. but their sentence of imprisonment for life awarded to them by the learned Additional Sessions Judge, Faisalabad, was allowed to remain intact.

2. It is case of the prosecution that on the night of 21st April, 1990 at about 11‑00 p.m. the complainant, Muhammad Yasin, P.W. 6, on hearing of noise of some persons falling inside compound of his house got up and identified him to be convict Bashir, armed with carbine who opened the gate of his house whereupon convict Hamid armed with carbine, Liaqat (absconder) armed with Sandhaiwa and another unidentified person armed with carbine entered his house. Bashir and Hamid opened door of his residential room. The complainant challenged them but they warned him to keep quiet. Bashir and Hamid came out of the room, the former was carrying red‑coloured purse containing ornaments. The complainant raised alarm which attracted his father Shah Nawaz, Liaqat Ali and Khizar Hayat. Bashir fired at them. Shah Nawaz received injury on his right arm, Liaqat Ali on abdomen and Khizar Hayat on his mouth. The complainant caught hold of Bashir and snatched the purse from him. Absconder gave him Sandhaiwa blows whereas Bashir gave him blows with butt of the carbine. Maqsoodan Bibi, wife of the complainant, came to rescue her husband. Liaqat absconder gave her Sandhaiwa blows. In the meantime, Asghar uncle of the complainant and many other persons came there. In the struggle Bashir was also injured and apprehended. The remaining culprits ran away. The complainant filed his complaint with S.I. P.W. 11, Muhammad Ayub.

3. Muhammad Ayub, S.I. started investigation of the case. Complainant produced before him the purse containing the ornaments. He prepared the site plan. He arrested Bashir at the spot. Bashir was examined by Medical Officer, Jaranwala. On 22‑4‑1990 Bashir led to recovery of carbine from Kotha of the complainant. On the same day supplementary statement of the complainant was recorded where he claimed that the unidentified person was appellant Falak Sher, who had earlier served with him and was turned out. He recorded statements of injured witnesses in the Allied Hospital, Jaranwala. He arrested Mst. Nooran and Bahishtan (both acquitted) and interrogated them. Hamid was arrested. He led to recovery of carbine from his house. He completed the investigation and challaned the arrested persons but endorsed Liaqat Ali as absconder.

4. The learned Additional Sessions Judge, Faisalabad, framed charge under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 307/326/149/148, P.P.C. against the appellant and five other companions. All of them pleaded not guilty to the charge and claimed trial.

5. In order to establish the charge prosecution examined:‑‑

P .W.1 Falak Sher, H.C. On 21‑4‑1990 he recorded formal F.I.R. Exh.PA/1 on the statement of the complainant; Exh.PA.

P.W.2 Mst. Maqsoodan Bibi. She is injured eye‑witness of the incident and wife of the complainant.

P.W.3 Khizar Hayat. Injured eye‑witness of the incident.

P.W.4 Liaqat Ali. Injured eye‑witness.

P.W.5 Shah Nawaz. Injured eye‑witness.

‑P.W.6 Muhammad Yasin. Complainant. Injured eye‑witness.

P.W.7 Dr. Muhammad Asghar, M.O. He examined injured Shah Nawaz, Liaqat Ali and Khizar Hayat.

P.W:8 Dr. Muhammad Akram, M.O. He examined Muhammad Yasin and Mst. Maqsoodan Bibi.

P.W.9 Muhammad Saleem. H.C. Recovery witness. Not connected with the case of the appellant.

P.W.10 Musa. He came on cries and saw assailants running away.

P.W.11 Muhammad A4ab. S.I. Investigating Officer.

6. The appellant and his companions denied the version of the prosecution and claimed innocence. The appellant further stated that he was falsely implicated because he and his family members had left work of the complainant.

7. The learned Additional Sessions Judge, Faisalabad, vide his judgment dated 10‑3‑1992 found the appellant and his companions Hamid and Bashir guilty for the offence under section 397/34, P.P.C, and sentenced them to imprisonment for life. His companions Hamid and Bashir were also convicted for offence under section 307/326, P.P.C.

8. On appeal the Federal Shariat Court with 397/34, P.P.C. added section 395 also but maintained the sentence of imprisonment for life.

9. The appellant with convicts Bashir and Hamid filed petition for leave to appeal through Superintendent of Jail. Leave to appeal was granted to Falak Sher only and was refused to his companions by this Court.

10. We have heard Sh. Muhammad Naeem, Advocate Supreme Court, for the State and gone through the F.I.R: initially recorded, Exh.PA and PA/1, the deposition of the witnesses, the statements of the appellant recorded under section 342, CrY.C., the judgment passed by the trial as well as appellate Court.

11. On perusal of the record we find that the appellant was known to the complainant as he had either been working at his residence or his younger brother was working there and he used to visit his house or he and his family members were working at his field; if he would have been one of the culprits his name would have been given in the First Information Report, by the complainant. His implication subsequently in the case is mala fide and no reliance can be placed on the evidence of prosecution implicating him in the case. The trial Court and the Federal Shariat Court has not attended to this aspect of the case.

12. The learned counsel for the State while repudiating the abovesaid fact of the case stressed that in supplementary statement recorded on the same day the complainant has given name of the appellant. Besides all the eyewitnesses shave implicated him. His conviction and sentence thus be maintained.

13. Wore dilating upon the contentions raised by the learned counsel for the State, it would be necessary to reproduce the contents of the F.I.R., which reads:‑‑

14. With that it will also be useful to reproduce the circumstances which impressed this Court to grant leave to appeal "Falak Sher convict was previously known to the complainant but his name does not appear in F.I.R. wherein it is rather stated that the fourth person was standing armed with a carbine and he (complainant) would identify him in case he was brought before him". ,

15. It may be observed that the appellant and his family was previously known to the complainant and his family members and they were on visiting terms. In that respect P.W. 2 Mst. Maqsoodan Bibi has admitted in cross -examination that "Falak Sher had been working for us about 2/3 !years. At that time his mother and sister would also work with us. They were on visiting terms with us". She has further said, "I had identified Falak Sher accused at the time of occurrence at the place of occurrence. I had told my husband that Falak Sher accused was also with other accused at the place 'of occurrence. Falak Sher was also identified by my husband that time:' P.W.3 Khizar Hayat has deposed, "it is correct that Falak Sher has been working for Yasin P.W. At the time of occurrence a small brother of Falak Sher was working for complainant". P.W.4 Liaqat Ali has admitted in cross‑examination that "I told this to Yasin P.W., that Falak Sher accused was also present". P.W.5 Shah Nawaz in cross‑examination has admitted, "I knew Falak Sher previously who had been working for us. At the time of occurrence Falak Sher was not working with us but younger to Falak Sher accused used to work for us". P.W.6 Muhammad Yasin in cross‑examination has admitted, "brother of Falak Sher accused was working for us and Falak Sher was on the visiting terms with his brother when he used to work for us and would assist him in our work".

16. In view of the above admissions of the complainant and his witnesses it is established that Falak Sher was not only previously known to the complainant but worked in his house also.

17. As the appellant was previously known to‑the complainant he would have certainly named him in his complaint made before P.W. 11 Muhammad Ayub, S.I. To cover such lacuna complainant Muhammad Yasin in his statement before the Court has said, "I had disclosed name of Falak Sher accused to police because he was standing in Ihata in front of me. I had named Falak Sher accused as accused at the time of recording of F.I.R. alongwith other three accused". Muhammad Ayub, S.I., when was confronted with this contradiction admitted in cross‑examination, "it is correct that in F.I.R. name of Falak Sher, Mandu, Nooran and Mst. Behishtan accused were not mentioned by the complainant in the F.I.R." The Court observed that the witness voluntarily stated that, "supplementary statement of complainant was recorded on the same day in which he named Falak Sher, Nooran and Mst. Bahishtan accused".

18. The learned counsel for the State insisted that in supplementary statement recorded by S.I. Muhammad Ayub on same day the complainant had disclosed name of the appellant. . The supplementary statement of the complainant be read as part of the F.I.R. The contention is devoid of force. It may be observed that F.I.R. is the document, which is entered into 154, Cr.P.C. Book maintained at the police station, at the complaint of informant. It brings the law into motion. The police under section 156, Cr.P.C. starts investigation of the case.

19. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.

20. It is, therefore, established that name of the appellant does not appear le in the F.I.R. In respect of the statement of complainant Muhammad Yasin recorded before the Court stating that he had named appellant Falak Sher alongwith three accused in the F.I.R. it may be observed that it is totally belied by the 1.0. Muhammad Ayub. It is an improvement made by the complainant. Statement of the complainant involving of appellant Falak Sher in the case is obviously false and no reliance can be placed thereon. Because of improvement the other eye‑witnesses have also named the appellant in the case. Their evidence in respect o the appellant is also not true. This aspect of case was neither attended to either by the trial Court or the Federal Shariat Court,

21. In view of our observations made hereinabove we are inclined to extend benefit of doubt to the appellant, Falak Sher and accept his appeal, set aside his conviction and sentence recorded against him by the Additional Sessions Judge, Faisalabad, on 10‑3‑1992. He stands acquitted of the charge. He be set at liberty forthwith if not required in any other case.

22. This is the reasoning of our short order of even date.

N.H.Q./F‑357/S Appeal accepted.