2024 P Cr. L J 1421
Muhammad Atif Naveed and another Versus The State ---
Criminal Appeals Nos. 827, 698 and Murder Reference No. 41 of 2022
Infirmities in inquest report---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Incident took place in pursuance of marriage dispute---According to the record, the crime scene was situated at a distance of 15-kilometers from police station and after 15 to 30 minutes of the incident, the victims were shifted to THQ Hospital---Investigating Officer reached THQ Hospital and recorded the statement of complainant which was transcribed as complaint at about 6.55 pm and immediately thereafter was dispatched to police station for the registration of formal FIR---Allegedly, the promptly registered FIR out-rightly excluded the possibility of any fabrication and false implication---However, the practice of stopping the Station Diary/Roznamcha as well as the FIR Register was rampant in our system of criminal investigation through which even the delayed FIRs were shown to have been promptly registered---Record showed that from the police proceedings mentioned at the bottom of FIR the complaint was drafted in THQ Hospital and was transmitted to Police Station through Police Constable---Inevitably, for proving the registration of FIR without any uncalled for delay the evidence of said Police Constable had crucial importance but surprisingly he was not produced as witness during trial of the case---If that was not enough, Investigating Officer candidly admitted that during investigation the statement of said Police Constable was not recorded under S. 161, Cr.P.C. and for that omission he failed to offer any explanation---In the present case, it was noticed that on the last page of inquest report the brief facts of the case were not mentioned properly---Relevant page gave no information about the identity of the assailants, the weapons used in the commission of crime, the manner in which the incident occurred and above all its time---Most important aspect noticed from the last page of inquest report was to the effect that no reference about injured lady having received injuries in the incident was made---Same incomplete inquest report was provided to the Medical Officer before the commencement of autopsy---Question of vital importance was that if at all the statement of complainant had been recorded before the postmortem examination, then why the tale of incident was not mentioned on the page of inquest report meant for incorporating the brief facts of the case---All the said omissions gave vent to an inescapable conclusion that till the time corpse of deceased was subjected to postmortem, the veil had not been lifted from the identity of the assassins---Thus, the FIR was registered much after the postmortem examination and through such malpractice the eye-witnesses gained advantage of adjusting their statements in accordance with locale and nature of injuries pointed out by the Medical Officer--
Statement of injured witness---Reliability---Receipt of grievous hurt by an eye-witness in a murder incident though was a factor which reflected positively upon his presence at the spot but it was not a conclusive proof about the truth of his deposition---For handing down guilty verdict to an accused in such incident, the testimony of an injured eye-witness was still required to be tested on the touchstone of the principles laid down for the appraisal of evidence---To say that an injured witness of murder incident seldom told lie might be true in a case of single accused but was an overstatement when the number of assailants was more than one---However, it would wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility.
Delay in recording the statement of injured witness---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Notable that the incident occurred on 17.03.2021 whereas S.161 Cr.P.C. statement of injured was recorded on 29.03.2021---Such delay of about 12-days in recording of S.161 Cr.P.C. statement was attributed during trial by the prosecution to the precarious medical condition of injured---As per record, injured lady initially was brought to THQ Hospital and was provided medical treatment from where she was referred to DHQ Hospital---As per prosecution claim, injured witness also remained admitted in CMH but no supporting evidence in that regard was led during trial---Nevertheless, Investigating Officer moved an application and thereby sought the opinion that whether injured lady was medically fit to make a lucid statement upon which it was reported by anaesthetist that the needful could not be done due to the critical condition of the patient---Admittedly, said anaesthetist was neither cited as witness in the case nor he appeared as such in the dock, a fact sufficient to discard it from consideration---Above all, at the time of initial medical examination carried out by Medical Officer, she found injured lady conscious and oriented in time and place---Last but not the least, injured lady was relieved from hospital on 25.03.2021, as was evident from Discharge Certificate---Question of pivotal importance arose that if at all injured lady was having normal Glasgow Coma Scale (GCS) at the time of her examination by Medical Officer on 17.03.2021, then why her statement under S.161, Cr.P.C., was postponed till 29.03.2021---Investigating Officer had reached THQ Hospital by the time injured lady was admitted there for medical treatment but still he made no effort to record her statement under S.161 Cr.P.C.---Such delay in recording S.161 Cr.P.C. statement of injured lady gained significance when seen in the context that no explanation about it was offered during trial as well as before Court---Even otherwise, injured lady was discharged from hospital on 25.03.2021 but still her statement was recorded four days thereafter for which again no explanation was offered by the prosecution---Such delay gave vent to many hypotheses about the truth behind the statement of injured lady leaving it unworthy of any credence---On one hand, it gave clue that the actual assailants were previously not known to injured lady and on the other hand it gave birth to the possibility that the accused persons were falsely grilled in the case through the tool of substitution with actual unknown assailants---
Delay in recording the statement of witness---Effect---
Delay, even of 2/3 days in recording S.161 Cr.P.C statement of an eye-witness of homicide incident is always considered fatal and if no legally admissible explanation about it is offered, then the deposition of such witness is to be ousted from consideration.
Presence of complainant at the time and place of occurrence not proved---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Record showed that the complainant failed to satisfactorily establish his presence at the crime scene---Complainant claimed that at the eventful time he while boarding on a motorcycle along with his son was following the bike upon which the two victims along with another female were seated---As per deposition of complainant, after about 10-15 minutes of the incident he along with two persons proceeded to THQ Hospital while placing the victims of murderous assault in the Suzuki Pick-up of a driver---Complainant gave no description of his own bike as well as of the assailants---Complainant was incumbently required to mention at least the particulars of the motorcycle on which he along with his son was boarded---Besides that, nothing as such was available on record that to whom complainant and his son entrusted their bike which according to them was left behind at the place of murder while proceeding to THQ Hospital---Above all, the motorcycle of complainant was also not exhibited during his evidence recorded before the Trial Court---If bike was excluded from the whole story of crime then the claim of complainant about his presence at the crime scene had no shred of truth in it---If at all complainant and his son were present at the crime scene along with their bike, at least one out of them should have driven it to THQ hospital behind the Suzuki Pick-up in which the victims were shifted from the spot---Presence of a witness was not to be inferred solely on the basis of his claim, rather was to be ascertained by subjecting it to the test of strict scrutiny from the attending circumstances---
Unnatural conduct of complainant---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Though according to column No.2 of FIR complainant had a mobile phone but he candidly conceded to have not informed anybody about the occurrence through a phone call---Such conduct ran contrary to natural human response which one was expected to demonstrate after having experienced such a tragic incident---Complainant was real brother of deceased and it did not sound logical that he would call no one through his mobile phone for intimating perhaps the most heart-wrenching incident of his life---For the safe administration of justice, the foregoing facts were sufficient to discard the stance of complainant about his presence at the spot---
Medical evidence is confirmatory to ocular account and its careful perusal gives clue about the truth behind the depositions of eye-witnesses regarding their stance of having seen the incident---Medical Officer who enters the dock during trial indeed through his testimony enables the Court to adjudge the veracity of an eye-witness for administering justice in an impeccable manner---If the statement of an eye-witness is at variance with the medical evidence, it gives rise to a doubt the legitimate benefit of which cannot be taken away from the accused facing charge of murder.
Accused inflicted firearm injuries to deceased from a distance of half karam (2.5 feet) only---Such distance was further reduced keeping in view the fact that the assailant must have stretched his arm to press the trigger for targeting deceased---In such circumstances, there should have been mark of blackening, tattooing or charring but nothing as such was observed by Medical Officer, during autopsy around the entry margins of the two firearm wounds---
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