MIR MUHAMMAD alias Kuraro Versus State

ATHAR MINALLAH, J.--- The "appellants" , Mir Muhammad alias Kuraro and Allah Wadhayo, had filed Jail Petition No.141 of 2021 and they had sought leave which was granted against the judgement of the High Court, dated 28.01.2021, whereby their convictions and sentences were upheld. The "complainant" , Abdul Qadir, has filed Cr.P.L.A.No.25-K for 2021 and he has sought leave against the same judgment because his grievance stems from the modification of the sentences from death to imprisonment for life.

2.The appellants were nominated in crime report No.88, dated 03.05.2013, registered at Police Station Foujdhari, District Shikarpur for commission of the alleged offences under sections 302, 148, 149, 337-H-2 and 504 of the Pakistan Penal Code, 1860 ( 'P.P.C.' ). The complainant, Abdul Qadir (PW-1), in his complaint, filed on 03-05- 2013, had alleged that on 02.05.2013 his son, Ghulam Qadir (deceased), had lost his life after sustaining fire arm injuries caused by the appellants. Completion of investigation had led to filing of a report under section 173 of the Code of Criminal Procedure, 1898 ( 'Cr.P.C.' ) followed by framing of the charge on 05.08.2013. The appellant did not plead guilty and, therefore, the trial had ensued. The prosecution, in order to prove the guilt of the appellants, had produced witnesses while the appellants did not opt to be examined under oath nor did they produce evidence in their defence and, therefore, their statements under section 342 of the Cr.P.C were recorded. Upon conclusion of the trial the trial court had convicted the appellants under section 302(b) and they were sentenced to death. They were also convicted under section 148 of the P.P.C. and sentenced to rigorous imprisonment for two years with a fine of Rs.5,000/- and in default thereof to undergo further simple imprisonment for two months. They were further directed to pay compensation of Rs.200,000/- each to the legal heirs of the deceased under section 544-A of the Cr.P.C. and in default to undergo further rigorous imprisonment for two years. The appeal preferred by the appellants was partly allowed by the High Court vide the impugned judgment dated 28.01.2021. The High Court, while upholding their convictions under section 302(b) of the P.P.C., had modified the sentences of death to imprisonment for life since the reference was answered in the negative. The benefit contemplated under section 382-B of the Cr.P.C was extended in their favour. This Court had granted leave in Jail Petition No.141 of 2021 vide order dated 20.12.2022.

3.We have heard the learned counsel for the appellants, the complainant as well the Additional Prosecutor General, Sindh. The record has been perused with their able assistance.

4.The occurrence, in this case, which had led to the unnatural death of the complainant's son, Ghulam Qadir, had taken place on 02.05.2013 around 11.30 am. According to the prosecution's story, the complainant, Abdul Qadir (PW-1), his deceased son Ghulam Qadir, Muhammad Fazal (PW-2) and Bashir Ahmed (PW-3) had travelled from Sukkur to Shikarpur to visit Pathan Khan (PW-4), who happened to be the father-in-law of the deceased. According to the testimonies of the witnesses, they had left Sukkur at around 8 am on 02.05.2013 and they stayed at the house of Pathan Khan (PW-4) in Shikarpur for around an hour and a half. They had parked their car at some distance and not outside the house, though it was accessible. The incident took place near the place where the car was parked. Pathan Khan (PW-4) nor anyone else from his house had accompanied them to see them off. They were attacked by the appellants, two named and 2 to 3 unidentified accused. The named accused were stated to have been armed with firearm weapons. The firearm injuries that had led to the unnatural death of the deceased were attributed to the appellants. The prosecution, in order to prove its case, had produced three witnesses i.e. Abdul Qadir (PW-1), Muhammad Fazal (PW-2) and Bashir Ahmed (PW-3) who had deposed the ocular account. The prosecution had also relied on the recovery of the firearm weapons and the positive report of the Forensic Science Laboratory ( 'FSL' ). The medical evidence was brought on record by Dr. Imtiaz Ali who had entered the witness box as (PW-6). The autopsy was conducted by the latter at 1.30 pm on 02.05.2013 and the report had described that the deceased victim had sustained two firearm entry wounds, one on the right side of the chest while the other on the right hypo-chondrium over the abdomen. The High Court was of the opinion that the prosecution had failed to prove the factum of motive and, therefore, the sentences of death were modified to imprisonment for life.

5.As already noted above, the ocular account was deposed by three witnesses. They all were residents of Sukkur which, according to their own testimonies, was at a considerable distance from the crime scene. They had not offered a satisfactory explanation for their visit to the house of Pathan Khan in Shikarpur. Their explanation was vague and evasive. One of the witnesses, Bashir Ahmed, (PW-3), had deposed that the programme to visit the father-in-law of the deceased victim was made at around 8 am the same morning and that he had to take casual leave from his employer since they had to travel to another town during working hours. However, the witnesses stated that the purpose of the visit was 'some domestic work' and the details could not be disclosed. The status of the witnesses who had deposed the ocular account was that of chance witnesses. On the other hand, Pathan Khan, (PW 4), had materially contradicted the depositions of these three witnesses. He had stated that the deceased victim was accompanied by his father i.e Abdul Qadir, (PW-1), the witnesses and his mother while the purpose of their travel to Khanpur, a distinct town, was a medical examination of the latter. According to the testimony of this witness the mother of the deceased victim was also present at the crime scene at the time of occurrence. The other witnesses, in their testimonies, did not acknowledge the presence of the deceased victim's mother at the crime scene nor that she had travelled with them. They had also not stated that the main purpose of their visit was a medical examination of the deceased victim's mother by a medical practitioner in Khanpur. The house of Pathan Khan (PW-4), was situated in a street and it was accessible to vehicles, yet the deceased victim had parked the car at a considerable distance. The site plan prepared and brought on record by Nadeem Pervaiz, Tapedar Mukhtiarkar (PW-7), does not show the parked vehicle while, according to the witnesses, the occurrence had taken place a few feet away from it. It also did not show the house of Pathan Khan (PW-4), According to the testimonies of the eye-witnesses, Pathan Khan (PW-4), nor anyone else from his house had accompanied them to see them off. This was not a natural conduct because according to the witnesses they had travelled from another town to visit Pathan Khan (PW-4), and they had explicitly denied the suggestion regarding a strained relationship with his son-in-law i.e the deceased victim. As already noted above, in his cross-examination, Pathan Khan (PW-4) had deposed that his son-in-law, the deceased victim, had brought his mother to Khanpur for medical examination and that they were accompanied by the complainant. The medical evidence brought on record also does not fully support the ocular account of the three witnesses.

6.There is yet another intriguing aspect of the prosecution's evidence i.e. the testimony of Hakim Ali, SIP (PW-8) who had deposed that the complainant, Abdul Qadir (PW-1), had visited the Police Station at 12 pm on 02.05.2013 i.e around half an hour after the occurrence had taken place and that he had informed him that his son had been murdered. However, this witness had explicitly deposed that the complainant had not disclosed the perpetrators of the crime let alone nominating them. In his testimony, he had further deposed that although the witnesses and the complainant, Abdul Qadir (PW1), were present in the Hospital on the day the occurrence had taken place but neither did he make any inquiry nor had the complainant or the potential witnesses disclosed who had committed the crime. The entry made in the daily diary also did not mention the accused who had committed the crime. Surprisingly, Hakim Ali, SIP (PW-8), had not entered the information regarding the alleged commission of a cognizable offence in the prescribed book, in compliance with the statutory duty imposed upon the in charge of Police Station under section 154 of the Cr.P.C, despite receiving such information promptly after the occurrence. As noted above, the information was received at the Police Station at 12 pm on 02.05.2013 i.e. around half an hour after the commission of the crime. The crime report was registered the next day i.e. on 03.05.2013 at around 5 pm and the appellants were disclosed and nominated by the complainant, Abdul Qadir (PW-1), in his complaint for the first time.

7.It is settled law that a crime report or information entered in the prescribed book for the purpose of section 154 of the Cr.P.C. is not a substantive piece of evidence. Nonetheless, delay in the registration of an FIR may give the complainant and the police officials an opportunity to falsely nominate an accused or manipulate the evidence as a result of consultation and deliberations. The registration of a criminal case is the first step to put the proceedings in motion and to enable the in charge of a police station to secure the crime scene and collect the evidence before it is manipulated or loses its evidentiary value. The registration of a criminal case without delay has significance for the complainant as well as an accused. The delay raises the probability of false implication of an accused and to manage the evidence to bring it in line with the prosecution's story. The promptness eliminates the chances of such prior consultation and deliberation and raises a presumption of credibility and bona fides 1 . It is noted that, under the scheme of the Cr.P.C, the entry of information relating to the commission of a cognizable offence other than in the manner prescribed under section 154 ibid is not contemplated. The entry made in a daily or station diary in such an eventuality is a dereliction of the mandatory statutory duty imposed under section 154 of the Cr.P.C. This Court has consistently held that an officer in charge of a police station has no authority, nor does any such authority vest with any other person, to refuse to register an information under section 154 when it discloses the commission of a cognizable offence. The officer in charge of a police station is also not vested with authority to embark upon an inquiry regarding the correctness or otherwise of the information which has been given for the purposes of registration of a case under section 154 of the Cr.P.C. It has been held by this Court that any investigation or inquiry in the nature of determining the correctness or otherwise of the information prior to registration of the FIR will be hit by the provisions of section 162 of the Cr.P.C. 2 It is a statutory duty of the in charge of a police station to carry out investigation after a case has been registered under section 154 of the Cr.P.C, except in those eventualities which have been explicitly provided therein. In the case before us, the complainant, Abdul Qadir (PW-1), had visited the police station promptly after the occurrence i.e. at 12 pm on 02.05.2013 and had informed regarding the commission of a cognizable offence which had led to the unnatural death of his son. However, he did not disclose the person responsible for the commission of the crime. The police officials visited the Hospital where the deceased was taken but no inquiry was made nor any person claiming to be an eye-witness of the occurrence had disclosed the accused. It would not be unreasonable to infer that either the accused were not known to the persons claiming to be the witnesses of the commission of the crime or they were not present at the crime scene. The appellants were nominated for the first time when the crime report was registered after a considerable and unexplained delay. The crime report was registered around 5 pm on 03-05-2013 while the cognizable offence had taken place on 02-05-2013 at around 11.30 am and its information was promptly given in the police station on the same day around 12 pm. In the facts and circumstances of this case it cannot be ruled out that the appellants may have been falsely nominated in this case after consultation and deliberations. There was no reason for not disclosing their identity when the information was given by the complainant to the in charge of police station shortly after the commission of the offence or to the police officials who were present in the Hospital where the dead body of the deceased victim was lying.

8.As already discussed above, the three witnesses who had deposed the ocular account were not residents of the area where the occurrence had taken place. Their status was that of chance witnesses. The principles and law regarding the testimony of a witness who falls in this category have been recently highlighted by this Court 3 and the same is reiterated. "The persons who are competent to appear in the witness box as witnesses fall in various categories and one of them is a 'chance witness'. A chance witness, in legal terms, is a witness who claims that he or she was present at the crime scene at the fateful time and that his presence there was by sheer chance while in the ordinary course of business, place of residence and in the normal course of events he or she was not supposed to be present at the scene. It has been observed by this Court that ordinarily the evidence of such a witness is not accepted unless justifiable reasons were shown to establish his/her presence at the crime scene at the relevant time. In the normal course, the presumption that would operate would be that such witness was absent from the crime scene. However, in rare cases, the evidence of a chance witness may be relied upon, provided some convincing explanation appealing to a prudent mind of his presence at the crime scene has been put forth, otherwise the evidence would be seen as suspicious evidence and, therefore, it would not be safe to be relied upon 4 . The admissibility and evidentiary value of the testimony of a witness who falls in the category of a chance witness essentially depends on the facts and circumstances of each case and no hard and fast rule can be laid down in this regard. The crime scene could be a dwelling house, a place of business or a public road or highway. A brother who was living at a distance of twenty miles and was visiting his sister was considered as a reliable witness in the facts and circumstances of that particular case because he had offered a plausible explanation for his presence 5 . The testimony of a visiting son-in-law was not considered reliable because his explanation was not found to be convincing 6 . Residents of the same vicinity are ordinarily not considered as chance witnesses 7 but the eye-witnesses in a case were considered as chance witnesses because they were inmates of other houses in the vicinity and not the house where the occurrence had taken place late at night 8 . A witness lived nine kilometres from the place of occurrence and he claimed to have been present at the crime scene on a working day without giving a plausible explanation and, in the facts and circumstances of that case, the Court observed that his statement warranted careful and cautious scrutiny 9 . If the offence takes place in a public place, e.g. a thoroughfare, then generally the presence of a passerby cannot be out rightly rejected by declaring him or her as a chance witness, unless the latter cannot give a plausible and convincing explanation for being present at the crime scene at the relevant time 1 0 . The presence of disciples at the crime scene who were visiting a spiritual personality was not doubted because it was not something that was unusual 1 1 . In case of conviction on a capital charge and when the evidence includes the testimony of a chance witness then the court ought to exercise utmost care and be on guard by seeking corroboration before placing reliance on such evidence 1 2 . The testimony of a chance witness cannot be disbelieved merely because her or his presence at the relevant time and place was per chance. Any doubt that would reasonably suggest that the witness was not present at the relevant time at the crime scene would be sufficient to discard the deposition and it includes a witness who is a chance witness 1 3 . The admissibility and evidentiary value of a witness falling in the category of a chance witness, therefore, depends on the explanation given by the witness regarding his or her presence and to what extent a court would find it plausible, convincing and the testimony of such a witness to be confidence inspiring. The testimony of a chance witness requires strong corroboration 1 4 . The evidentiary value of a witness would depend on the facts and circumstances of each case."

9.The testimonies of the three witnesses who had deposed the ocular account cannot be safely relied upon. They were chance witnesses and they had failed to offer a plausible, convincing and confidence inspiring explanation for travelling to another town with the deceased victim and, that too, for a short duration. Their explanation was vague and evasive besides being materially contradicted by the testimony of Pathan Khan (PW-4). Even otherwise, we have not found their depositions to be reliable, consistent, trustworthy and confidence inspiring.

10.The appellants were arrested by Lal Bux, SIP (PW-5) on 17.5.2013 and according to the prosecution's story, they had led to the recovery of the firearms on 24.5.2013. It was a joint recovery and was made from the same place. The crime empties collected from the crime scene and firearm weapons recovered at the instance of the appellants were sent to the FSL together i.e. on 30.05.2013. In the circumstances, the recovery of the firearm weapons was not free from doubt in the facts and circumstances of this case. The positive report of the FSL was, therefore, of no avail to the prosecution. The High Court had rightly disbelieved the factum of motive. The prosecution had indeed failed to prove the motive nor did it appeal to the mind of a prudent man.

11.In view of the above discussion, the prosecution, in our opinion, had failed in proving the guilt of the appellants beyond a reasonable doubt and, therefore, in the facts and circumstances of this case, they cannot be denied the benefit of doubt, as of right. The appellants, namely, Mir Muhammad @ Kuraro and Allah Wadhayo are, therefore, acquitted from the charges framed against them by extending the benefit of doubt. Consequently, the judgments of the High Court and the trial court, dated 28.01.2021 and 06.07.2015 respectively, are hereby set-aside. The appellants, if not required to be incarcerated in any other matter, shall forthwith be released.

Cr.P.25-K of 2021

12.Since the appellants have been acquitted from the charges framed against them, therefore, this petition has become infructuous and it is accordingly dismissed.

13.We are constrained to record our observations regarding the systemic phenomenon of refusal or delay relating to registration of a criminal case or FIR in accordance with the statutory duty imposed upon an in charge of a police station under section 154 of Cr.P.C. This phenomenon appears to be widespread because it has been persistently observed in most of the criminal cases. The case before us is a classic case, highlighting dereliction of duty by the in charge of police station and lack of accountability. It has been observed that this phenomenon is generally prevalent in cases relating to vulnerable and marginalised classes. The registration of a criminal case under section 154 of the Cr.P.C. is exclusively an executive function and violation of the statutory duty imposed there under has profound consequences for the parties involved in a criminal case. A functional and effective criminal justice system is premised on the foundation of fairness, integrity and impartiality of registration of information regarding the commission of a cognizable offence, generally termed as FIR, under section 154 of the Cr.P.C and the pursuing investigation. These two executive functions are so crucial that they ultimately determine whether justice would be served. Whether the actual perpetrator of a crime will be held accountable, or rather making an innocent person to suffer the unimaginable agony of carrying the stigma of being an accused, essentially depends on the prompt registration of a criminal case followed by fair, honest, impartial and professional investigation. The bed rock of constitutional governance and rule of law is profoundly undermined when there is dereliction of the two aforementioned statutory duties vested exclusively in the Executive branch of the State. It is an onerous duty of the State and its functionaries to protect the fundamental rights of the citizens by protecting them from being victims of crime and if a crime takes place, then to hold the perpetrator accountable. Many factors could be involved in the inability or failure on part of an in charge of police station in refusing or delaying the registration of a criminal case regarding a cognisable offence. It may be an attempt to avoid adding further burden to the workload, concealing the deterioration of law and order, the inability to prevent crime, corruption or abuse of the statutory powers for the benefit or at the instance of politically and socially influential persons or classes of the area. No reason whatsoever can justify dereliction of the mandatory statutory duty imposed on the in charge of police under section 154 of the Cr.P.C. The violation of this duty has profound consequences for the citizens and their fundamental rights besides eroding the public trust of the people in the criminal justice system. A citizen would be justified in perceiving that the criminal justice system merely serves the interests of the privileged and those who wield political and social power. The phenomenon also gives rise to the perception that the registration of a criminal case is subject to seeking permission from the superior officials or the politically or socially powerful persons of the area. If so, then it erodes rule of law and amounts to grave violation of a mandatory statutory duty. It is an onerous task of each provincial government to dispel such perception by ensuring that in each case there is no dereliction of the statutory duty imposed under section 154 of the Cr.P.C and, in case of violation, to take such appropriate action which creates deterrence for the future. It is noted that Article 4 of the Constitution declares and guarantees that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen where ever he or she may be and every other person for the time being within Pakistan. A dysfunctional criminal justice system for citizens who are not privileged or powerful manifests lack of constitutional governance. The onus is on the respective governments to establish that every citizen is dealt with in accordance with the obligation enshrined under Article 4 of the Constitution. The respective provincial governments are, therefore, expected to take effective measures to ensure that the statutory duties imposed under section 154 of the Cr.P.C followed by fair, impartial and professional investigation in each case are carried out strictly in accordance with law and without fear or favour.

14.The office is directed to send copies of this judgment to the Secretary Interior, Government of Pakistan and the Chief Secretaries of the respective provinces for placing them before the competent forums for consideration of our observations and taking effective measures regarding the mandatory statutory duties highlighted in this judgment.

MH/M-93/SC Appeal allowed.

1 Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others (2024 SCMR 1773) and Muhammad Nawaz and another v. The State and others (2024 SCMR 1731).

2 Muhammad Bashir v. Station House Officer, Okara Cantt and others (PLD 2007 SC 539) and Syed Qambar Ali Shah v. Province of Sindh and others (2024 SCMR 1123).

3 Shahid Ali v. The State (Criminal Petition No.53-K of 2021 decided on 06.02.2025).

4 Mst. Sughra Begum v. Qaiser Pervez and others (2015 SCMR 1142)

5 Umar Hayat v. The State (1998 SCMR 1101)

6 The State v. Ghulam Rasool (2007 SCMR 1944)

7 Inayat Ali v. The State (PLD 2002 SC 77)

8 Usuman alias Kaloo v. The State (2017 SCMR 622)

9 Ibrar Hussain and another v. The State (2020 SCMR 1850)

10 Muhammad Ahmad and others v. The State and others (1997 SCMR 89)

11 Aman Ullah v. The State (2002 SCMR 1557)

12 Mst. Anwar Begum v. Akhtar Hussain alias Kaka and others (2017 SCMR 1710)

13 Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596)

14 Muhammad Zaman v. Muhammad Afzaal (2005 SCMR 1679)