2024 CCJ 11

Other citations: 2024 PCrLJ 105

[Balochistan High Court]

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

Babar Ali and another—Appellants

versus

Muhammad Iqbal and others—Respondents

Criminal Acquittal Appeal No. (s) 29 of 2023, decided on 27^th March, 2023.

HEADNOTES

(a)   Criminal Procedure Code (V of 1898) —

— S. 154 — Police Rules, 1934, R. 24.1 — Information in cognizable cases — Scope — It is incumbent upon officer in-charge of a police station to record F.I.R. of a cognizable offence under section 154, CrPC and then to investigate the case — Besides section 154, CrPC, rule 24.1, of the Police Rules, 1934, uses the word ‘shall’ making it incumbent upon the police officer to register F.I.R. into prescribed register — Correctness or otherwise of such information depends on the investigation — There is no legal compulsion that F.I.R. must be registered on the application of an aggrieved person — Any person including a police officer may register F.I.R. in relation to commission of a cognizable offence. [Para. No. 6]

(b)   Criminal trial —

— Identification — Scope — The identification, without holding identification parade, merely at police station is of no legal value. [Para. No. 8]

(c)   Criminal trial —

— Investigation follows the FIR. [Para. No. 9]

Iftikhar Hussain and others v. The State, (2004 SCMR 1185) and Lal Din v. S.H.O., P.S. Delhi Gate, Multan, (1997 MLD 246) relied.

Islamuddin v. P.O. Sindh and others, (1995 MLD 372) and Muhammad Ramzan v. The Station House Officer, P.S. Jahanian and another, (1985 P.Cr.L.J. 1081) referred.

(d)   Criminal trial —

— Recovery of weapon — Scope — Sending the crime empties alongwith the crime weapon is not a safe course. [Para. No. 10]

Hayatullah v. The State, (2018 SCMR 2092) relied.

(e)   Criminal trial —

— Appeal against acquittal — Scope — After acquittal, an accused earns a double presumption of innocence. [Para. No. 11]

Abdul Nasir Tareen, Advocate for Appellants.

Date of hearing: 13^th March, 2023.

ORDER

Gul Hassan Tareen J:—The appellants, Babar Ali and Ahmed, have preferred the instant criminal acquittal appeal, under section 417(2-A), the Criminal Procedure Code, 1898 (“Cr.P.C.”) from judgment dated 23 January, 2023 (“impugned judgment”), passed by the Court of learned Sessions Judge, Usta Muhammad, (“Trial Court”), whereby the respondent Nos. 1 and 2 (“respondents”) were acquitted of the charge on the doctrine of ‘benefit of doubt’ in case FIR No. 154 dated 16 October, 2022, registered, under sections 324, 427 and 34, the Pakistan Penal Code, 1860 (“P.P.C.”), at police station City, Usta Muhammad, District Jaffarabad.

2.           According to contents of the application made by complainant Abdul Waheed, that on 14.10.2022, the complainant alongwith his brother, appellant No. 1 and cousins, appellant No. 2 and Salman Ali were going towards Lajpal Hotel, Bypass Road, for taking tea, in their personal car No. BLY 125, Toyota Grandee, white colour. At about 05:10 p.m., when they reached Madani Masjid near Veterinary Hospital, Umrani Street, they saw four persons boarded on two motorcycles, whom they can identify if come before them, came and stopped beside the right side of their car. They took out T.T. pistols and opened indiscriminate firing at them with intention to commit Qatl-e-Amd. His brother Babar Ali and cousin Ahmed Ali (“appellants”) sustained bullet injuries and got injured; whereas complainant and his cousin Salman Ali were miraculously saved. The unknown accused boarded on their motorcycles and bolted away towards Eastern Shahi Bazar. He alongwith his cousin Salman Ali took the injured to Civil Hospital Usta Muhammad, where the police also reached. Later, the Medical Officer referred the appellants to Larkana Sindh for further cure. On such application, a formal F.I.R. No. 154/2022 was registered and investigation of the case was entrusted to Muhammad Ali Solangi, A.S.I.

3.           After completion of the investigation, the Investigating Officer prepared incomplete challan and submitted before the Trial Court. The subsequent Investigating Officer of the case submitted supplementary challan and placed the respondent No. 2 in column No. 2 of the challan under section 169, Cr.P.C.

4.           Separate charges were read over to the respondents; to which both pleaded ‘not guilty’ and claimed trial. After recording prosecution evidence, the Trial Court examined the respondents under section 342, Cr.P.C; however, the respondents neither made statement on oath nor led any evidence in their defence. Vide impugned judgment; the Trial Court acquitted the respondents from the charge on the doctrine of benefit of doubt.

5.           Heard the learned counsel for the appellants, Mr. Abdul Nasir Tareen, Advocate at length and perused the record of the case.

6.           The alleged incident occurred on 14 October, 2022 at 5:10 p.m., whereas, application for registration of FIR was made on 16 October, 2022 at 5:50 p.m. According to statement of PW-6, Dr. Aslam Nazeer, Medical Officer, Civil Hospital, Usta Muhammad, the appellants were brought for medical treatment and examination on 14 October, 2022 by Allah Dina, Constable. The statement of Doctor has confirmed that the injured were brought for medical examination by the police; however, the police did not lodge F.I.R. of the incident. The Investigating Officer of the case appeared as PW-8 and deposed that on 14 October, 2022, he rushed to the Civil Hospital, on getting intimation of the incident and, later he alongwith complainant went to the site of occurrence and took into possession the crime empties and sealed them in parcel No. 1 alongwith magazine of T.T. pistol containing five live cartridges. However, despite getting knowledge of commission of a cognizable offence, the Investigating Officer or any other police officer did not register F.I.R. of the offence. It is incumbent upon officer in-charge of a police station to record F.I.R. of a cognizable offence under section 154, Cr.P.C. and then to investigate the case. Besides section 154, Cr.P.C, rule 24.1, of the Police Rules, 1934, uses the word ‘shall’ making it incumbent upon the police officer to register F.I.R. into prescribed register. Correctness or otherwise of such information depends on the investigation. There is no legal compulsion that F.I.R. must be registered on the application of an aggrieved person. Any person including a police officer may register F.I.R. in relation to commission of a cognizable offence. In this case, the Police Authority has failed to perform its statutory duty under section 154, Cr.P.C; therefore, the delay occurred in registration of F.I.R. has benefited the respondents.

7.           The F.I.R. was lodged with delay of more than 48 hours on an application made by the complainant. The contents of application do not speak about reasons of delay occurred in applying for registration of F.I.R. The unexplained delay in lodgment of F.I.R. creates a reasonable doubt which has rightly been extended by the Trial Court in favour of the respondents.

8.           On 25 October, 2022, the Police Authority called the complainant and appellants for the purpose of identification of respondent No. 1 at the police station. The complainant alongwith appellants identified the respondent No. 1 at the police station and submitted affidavits before the Officer In-charge, City Police Station, Usta Muhammad. In affidavits, the complainant and appellants mentioned that on 14 October, 2022, the respondent No. 1 alongwith his co-accused had made firing at them. The application made by the complainant for registration of F.I.R. does not contain description of the physical features of the respondents and the absconding accused. The identification, without holding identification parade, merely at police station is of no legal value. The complainant and the appellants had not mentioned that the respondents were previously known to them. Hence, identification of an accused at police station, that too, after eleven days of the incident, is of no use and the Trial Court vide impugned judgment, has rightly discarded this piece of evidence.

9.           In the instant case, the Investigating Officer started investigation of the case prior to lodgment of F.I.R. On 14 October, 2022, the Investigating Officer reached at the place of incident and took into possession the crime empty shells, live cartridges and magazine and handed over the same to the in-charge Malkhana for safe custody. He started investigation even before registration of F.I.R. which was registered on 16 October, 2022. It is a settled dictum “that investigation follows F.I.R.” In this case the F.I.R. has followed the investigation, which is a material illegality committed by the Police Authority. The Supreme Court of Pakistan in the case reported as Iftikhar Hussain and others v. The State, (2004 SCMR 1185) has held as under:

“16. As far as F.I.R. under section 154, Cr.P.C. itself is concerned, it is always treated to be a corner stone of the prosecution case to establish guilt against culprits involved in the crime. Thus it has got a very significant role to play. If there is any doubt in lodging of F.I.R. and commencement of investigation, it gives rise to a doubt in benefit of which, of course, cannot be extended to anyone else except to the accused. However, an F.I.R. under section 154, Cr.P.C. which has been lodged after conducting an inquiry loses its evidentiary value…..”

The Lahore High Court in the case reported as Lal Din v. S.H.O., P.S. Delhi Gate, Multan, (1997 MLD 246) has held as under:

“5. It has become a practice with the police that when an application for the registration of a case is made an inquiry is conducted even though the law does not provide the same. This method has become quite in rife and abundance and it can safely be expressed that the police has adopted this conduct to project autocratic authority. Such an investigation is not legally justified. It would be proper to refer to Muhammad Ramzan v. The Station House Officer, P.S. Jahanian and another 1985 PCr.LJ 1081 (Lahore) wherein it is ruled that the police officers cannot investigate a case without registration of the same. Sections 154/157, Criminal Procedure Code have been referred in this regard. This is an instance of such a matter where the police initiated the investigation of the case without registration of the F.I.R. This conduct of the police is illegal and unjustified.”

Reliance is also placed on the cases reported as Islamuddin v. P.O. Sindh and others, (1995 MLD 372) and Muhammad Ramzan v. The Station House Officer, P.S. Jahanian and another, (1985 P.Cr.L.J. 1081).

On the touch stone of the dictum laid down by the Apex Courts, the illegality committed during investigation is not curable in nature.

10.         The learned counsel for the appellant vehemently argued that the crime weapon was recovered at the instance of respondent No. 1 from his home; therefore, he is real culprit of the alleged murderous assault. The Investigating Officer of the case had secured the crime empties on 14 October, 2022 from the scene of incident, whereas on 3 November, 2022, the recovery of crime weapon was allegedly effected at the instance of respondent No. 1 from his home. The perusal of the report of Forensic Science Laboratory (“F.S.L”) states that on 21 November, 2022, parcel No. 1 and parcel No. 5 were received at the laboratory. The prosecution has also failed to explain the belated sending of this piece of evidence to F.S.L. The Investigating Officer of the case sent the crime empty shells, secured from the scene of occurrence and allegedly recovered pistol together, to F.S.L. The Investigating Officer should dispatched the parcels of crime empty shells, at once, to the F.S.L and later, on recovery of crime weapon, the same should have been sent to the F.S.L. Sending the crime empties alongwith the crime weapon is not a safe course, to be relied upon; therefore, the respondent No. 1 could not have been connected with the commission of alleged offence. The Supreme Court of Pakistan in the case reported as Hayatullah v. The State, (2018 SCMR 2092) has held as under:

“….Much reliance was placed on the recovery of pistol from the appellant and empty from the place of occurrence, we observe that the empty was recovered on 11.02.2006 and pistol was recovered on 22.02.2006 and till the recovery of the pistol the empty was not sent to the firearm expert and the empty and the pistol both remained together in the Malkhana and thereafter transmitted to the office of the Forensic Science Laboratory. So the recovery is inconsequential. Even otherwise recovery alone is not sufficient for conviction and it is always termed as a corroborative piece of evidence. It is settled law that one tainted piece of evidence can’t corroborate another tainted piece of evidence.

11.         We have minutely gone through record of the case and the impugned judgment. The prosecution has failed to prove its case against the respondents beyond reasonable shadow of doubt and the Trial Court has rightly extended benefit of doubt in favour of the respondents. After acquittal, the respondents have earned a double presumption of innocence, which the appellants’ counsel has failed to dislodge and rebut. The Apex Court in the case reported as Inayatullah Butt vs. Muhammad Javed and others (PLD 2003 SC 563), has held as under:

“13. It is well settled principle of law hat an appeal against the acquittal has distinctive features and the approach to deal with the appeal against a conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. There is hardly any impropriety, illegality or infirmity in the impugned judgment which is based on sound and cogent reason and does not warrant interference and is accordingly maintained”.

12.         What has been discussed above, we are not inclined to admit this acquittal appeal for regular hearing. As such, instant appeal fails and is dismissed in limine.

Appeal dismissed