MUHAMMADULLAH vs THE STATE

EJAZ AFZAL KHAN, J.--Muhammadullah son of Abdullah. Resident of Jehangira, District Swabi having been charged under section 302. P.P.C. videF.I.R. No,652 dated 18-9-1995, Police Station Lahore, was tried and sentenced by the learned Additional Sessions Judge, Lahore to imprisonment for life and to pay an amount of Rs,25,000 as compensation to the legal heirs of the deceased vide his judgment dated 13-11-1997, has now impugned his conviction in appeal.

2. P.W. Munawar Khan, A.S.-I.Who was present near a Petrol Pump in village Jehangira alongwith other police officials in connection with his routine patrol duty, on hearing a report of fire proceeded towards its direction. While being on his way towards the desired destination the appellant who was armed with a shot gun came across him, disclosed that he killed the deceased Salahuddin son of Miftahuddin by firing at him and then led him to the discovery of the house where the dead body of the deceased was found. The motive for the occurrence was illicit relations of the deceased with the wife of the appellant ever since her childhood which resulted in herill- health. The P.W. After recording the Murasila, preparing the injury sheet and compiling the inquest report, dispatched the dead body of the deceased for post-mortem examination, prepared the site plan, arrested the accused, took into possession the shot gun alongwith two live cartridges, bloodstained earth, 3 deformed pellets, 2 empties from the spot and sent the Murasila for the registration of case.

3. The prosecution to prove its case relied upon the F.I.R. Recorded on the basis of the statement of the appellant, discovery of the house at his instance where the dead body was found, recovery of the shot gun from his possession, empties from the spot and the report of the Ballistic Expert besides motive.

4. First of all we examine the F.I.R. And its probative value. As is clear from its content it was recorded on the basis of the statement made by the appellant. There is no cavil and quarrel with the proposition that the F.I.R. Itself is not a substantive piece of evidence unless its content is affirmed on oath and subjected to the test of cross-examination. It. As far as the provisions of section 154 of the Cr.P.C., Articles 140 and 153 of the Qanun-e-Shahadat Order, are concerned is a previous statement which can he used for the purpose of contradicting and corroborating its maker. So long as it is not proved in accordance with the law mentioned above, it is, as such, no evidence and, therefore, cannot be taken as a proof of anything stated therein. But when it is based on a statement made by an accused, as in this case, before the police which tends to incriminate him with reference to the offence he is charged with, in that event, it being inadmissible in evidence by virtue of Article 38 of the Qanun-e-Shahadat Order, is not even worth the paper it is written on, hence has to be left entirely out of account.

5. Next comes the evidence of discovery of the house at the instance of the appellant, recovery of the shot gun from his possession, empties from the spot and the report of the Ballistic Expert. The fact of discovery of the house at the instance of the appellant where the dead body was found will prove nothing but his knowledge about the place of occurrence. Similarly the recovery of shot gun from his possession and empties from the spot and the positive report of the Ballistic Expert, may, at their best, prove the fact about the use of the shot gun in the commission of the crime but in no manner prove that it was the appellant who used them in the commission of the crime. Moreover, a delay of one month in the dispatch of the shot gun and the empties to the Ballistic Expert will rob the report of its value if it is assumed to have any otherwise.

6. To prove the motive, the most important witness was the wife of the appellant whose ill-health was allegedly wrought by the sinister acts of the deceased and the other important witness was the Doctor who on examining her pathological conditions attributed her ill-health to the acts of sexual inter course with her in her childhood. Strangely enough, neither the wife was examined in the Court nor an effort was made by the Investigating Officer to examine the Doctor opining about the cause of her ill-health. In the absence of this evidence the story about the motive appears to be false and fictional,

7. The story narrated by Munawar Khan P.W. When put in the crucible of probabilities also does not ring true and natural in the circumstances of the case. How could he decide about the direction of the report of fire on hearing it from a distance of 2/3 kilometres from the place where he was standing at the relevant time and how could he choose the right path without being a man of extraordinary mental faculties and uncanny perception, are the unanswered questions which render his testimony unworthy of trust and belief.

8. The prosecution version, to conclude, seems to be a brain-child of the Investigating Officer who instead of making an effort to explore and unearth the actual facts and circumstances leading to the commission of the crime and the person behind it, found a figure head in the appellant for an eye-wash. When no direct evidence is forth-coming to connect the appellant with the crime and likewise when there is no circumstantial evidence of the specie which is in compatible with the innocence of the appellant, we have no alternative but to extend the benefit of doubt to him.

9. For the foregoing reasons, we allow this appeal, set aside the conviction awarded and the sentence imposed. The appellant shall be released forthwith if not required in any other offence. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.