11. While dilating upon the merits, it is observed that information of
crime was reported to police without afflux of any delay and as a
necessary consequence the FIR was registered within one hour and twenty minutes and the sole perpetrator nominated therein was Zaka Ullah
(appellant). The learned defence counsel drew our attention towards the
absence of signature or thumb impression of Naheed Akhtar
(deceased/complainant) upon her statement (Exh.PH), thereby,
endeavoured to persuade us that the FIR registered thereupon has no legal
sanctity. Since the complaint (Exh.PH) was prepared upon the statement
of victim of crime, hence we eloquently pondered upon the aforementioned objection. It is noticed that Naheed Akhtar (victim/deceased)
after being brought to THQ Hospital was provided medical care by Dr.
Ruqayia (PW.5). As per deposition of Dr. Ruqayia (PW.5) both hands,
wrists and arms of Naheed Akhtar were badly burnt and as a necessary
corollary, it can be held without an exaggeration that obtaining of her
signature upon the complaint was out of question. In a wrestle with the
proposition, we have also peeped through the judicial archives and have
come across certain precedents from Indian jurisdiction wherein affixing
of foot thumb/toe impression is considered a sufficient substitute to the
disability of signing a statement under section 154 Cr.P.C. and some of
them can be quoted as Rishi v. State [2008 (15) R.C.R (Criminal) 339],
Mahender Kaushik & another v. State of Delhi [2015 (29) R.C.R
(Criminal) 883], State of Gujarat v. Patel Maheshbhai Ranchhodbhai
[2008 (3) GLR 2566], Ramesh s/o Tulshiram Mahajan v. The State of
Maharashtra [2011 (21) R.C.R (Criminal) 762], C. Suresh v. The State
[2015 (1) MadWN (Cri) 238], Shri Ganesh Sakharam Kamble v. State of
Maharashtra [2011 (3) Bomb. C.R (Cri.) 586] and Rameshbhai
Dahyabhai v. State of Gujarat [2008 Cri.L.R 761]. The frailty of aforementioned interpretation of courts from across the border stands exposed
when scrutinized on the touchstone of definition of expression “sign”
embodied in section 3 (52) of The General Clauses Act, 1897 which does
not include toe impression even as a substitute. For the clarity of
proposition the foregoing provision is being reproduced hereunder:-
“Sign”. “Sign”, with its grammatical variations and cognate
expressions, shall, with reference to a person who is unable to write his
name, include “mark”, with its grammatical variations and cognate
expressions”. The afore-mentioned definition leaves no room for discussion that
use of toe impression by respected courts from Indian jurisdiction as a
substitute to “sign” can at the most be treated as suggestive in nature but
cannot be taken as rule of thumb. It would be advantageous to set out at
this stage that the legislative intent ensued from use of expression “sign”
in section 154 Cr.P.C. at the most is to ensure the identity of the informant
and the correctness with which such statement/information is recorded. In
the instant case, statement of Naheed Akhtar was recorded in the presence
of Dr. Ruqayia (PW.5) and a gist of it was even mentioned in MLC
(Exh.PE) as well. Last but not the least, neither Dr. Ruqayia (PW.5) nor
Altaf Gohar SI (PW.7) had any personal grouse against Zaka Ullah
(appellant) so as to incorporate incorrect tale of occurrence in the
complaint (Exh.PH). To be precise, if from the attending circumstances
court can draw a satisfactory impression that FIR was registered on the
statement of person mentioned therein, the absence of his sign and that too
on account of some disability cannot be taken as an illegality or
irregularity so as to damage the prosecution case. This rule can inflexibly
be applied in the instant case wherein the first informant i.e. Naheed
Akhtar (deceased) was having burn injuries on both her hands, thus as a
necessary consequence, absence of her sign on the complaint is an
ignorable omission.
Part of Judgment
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
Murder Reference-Murder Reference (Session Cases)63-17
2020 LHC 1362
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