Z. C. VALLIANI, J. --This is an appeal under section 417, Cr. P. C. By the State and is directed against the judgment of acquittal dated 19th July, 1974, passed by the Special Judge (Central) and Ex Officio Additional Sessions Judge, Karachi, in Sessions Case No 58 of 1970, State v. Shamim and others, to which the Special Judge (Central) and Ex Officio Addi--tional Sessions Judge, Karachi, acquitted all the 14 respondents of an offence punishable under section 302/148/149, P. P. C. For causing the murders of Lt. Anwar-ur-Rehman's and his cousin Mushtaq-ur-Rehman's, on 24th May, 1968, near the house of one Ayub, in the Dastgir Colony.
2 The brief facts of the case, according to the prosecution are, that there was enmity between two parties, one headed by Anwar Ahmed alias Total, respondent on one side and Zafar Bohrah and Majeed Teddy, on the other side and there had been incidents of fightings and quarrels between two parties from 15th May, 1968 up to 24th May, 1968, the date of the incident of this case.
Respondents are stated to be partymen of the first party of Anwar Ahmed alias Total, who is also one of the respondents. While the two deceased persons, Lt. Anwar-ur-Rehman's and Mushtaq-ur- --Rehman's are reported to be the men of the other party. 1t is alleged that report under section 323, P. P. C. Was made by respondent Anwar Ahmed, against some persons on 16th May, 1968, before the S. H. O Liaquatabad Police Station and further report by respondent Anwar Ahmed on 23rd May, 1968 at 11.00 hours under section 504, P. P. C. Against Majeed, Shabu and Zafar. It is further alleged, that on 22nd May, 1968, at about 10/11 p. m. Shola respondent, who was B. D Member, was sitting in the Cafe Majestic, when some persons armed with hockeys and dundas came and abused him saying, that he was supporting ghundas but Husain Shah, P. W. Separated them. On 23rd May, 1968, at about 10 p. m. The respon--dents are stated to have been roaming near hotel, armed with lathis and dundas, waiting for the other party to come. On 24th May, 1968, it is alleged that respondents Shola and Ch. Ishaq alongwith the other respon--dents were seen walking in groups with sticks and lathis in their hands. At about 10 o'clock a taxi came and stopped near the milk shop, close to Cafe Majestic. Two persons got out from that taxi and went to the pan shop near Cafe Majestic and purchased pan and cigarettes and got back into the taxi and went alongwith the road towards a wood stall. The said two persons in the taxi were Lt. Anwar-ur-Rehman's and Mushtaq-ur---Rehman's. As the taxi started moving, Rifat, Inam-ur-Rehman's, Shamim and Waseem ran after tile taxi and as the taxi reached near the grass shop, it was surrounded by Rais, Ashfaq Anwar Total, Javed, Gullu (deceased accused), Munawar, Tallat, Aftab and 4 or 5 other persons. At that time, according to prosecution, respondents Ch. Ishaq and Shola were also pre-- sent there. Rifat. Shamim, Rais and some others abused the two persons sitting in the taxi and asked them to get down. Some one shouted that Majeed Teddy is not with these persons in the taxi.
Respondent Rifat shouted kill these two persons as they are friends of Majeed Teddy and some one in the crowd shouted "Maro"! "Maro"! Soon afterwards 3 or 4 shots were fired in the air. Two persons sitting in the taxi ultimately got down from the said taxi and those who had surrounded the taxi moved away slightly. In the mean time, the taxi driver went away with the taxi. It is further alleged that at that time some one from the crowd shouted that some one is firing crackers and that there is no revolver and if there is one, then it is not the genuine one. Respondents Shola at that time shouted do not let these two persons go. At this respondents, Rifat, Shamim, Waseem, and others with open knives and sticks started attacking the said two persons. The other persons joined them with sticks and knives. Thereafter sound of two shots were heard and thereafter, the said two persons, namely, Lt. Anwarur Rehman's and Mushtaq-ur-Rehman's started running and they were bleeding. At that time, respondents Shola and Ch. Ishaq were shouting "Maro"! And "Pakro"! And do not allow these two persons to escape. It is further alleged, that respondent, Shola and Ch. Ishaq and others started stoning these two persons, who were running and consequently these two persons after running about 2-- furlongs, entered into a house of Syed Ayub, which was on the road. Respondent Rifat and other also rushed into that house. The light outside the said house was on at that time. It is alleged that at that time respondents Ashfaq, Rais, laved, Aftab, Munawar, Inamur Rehman's. Anwar Total and others had knives in their hands Respondents Ch. Ishaq was near the gate of the said house with a iron bar in his hand and some others had sticks and lathis in their hands. It is alleged that respondents Rifat, Tallat and Javed and deceased Gullu started creaking doors and windows of the said house and they shouted to the owner of the house to send out the two persons, who had got into his house. It is further alleged that one person from that crowd threw iron bar into the house through window. The prosecution further alleges that after the doors of the said house was broken open, deceased Lt. Anwar-ur-Rehman's came out of the house with a iron bar, shouted "Huto"' "Huto"' and was followed by deceased Mushtaq-ur-Rehman's, who had a chhuri in his hand. Deceased Anwar-ur-Rehman's managed to run towards the road and he was followed by respondents, Anwar Total, Ashfaq, Javed Aftab and Tallat, deceased accused Gullu and others. Deceased Mushtaq-ur-Rehman's when he reached near the outer gate of the said house, he was attacked with knives by respondents Rifat and Inamur Rehman's, Rais, Munawar and others. Respondent Ch Ishaq hit deceased Mushtaq-ur-Rehman's with iron bar. Deceased Mushtaq-ur-Rehman's also attacked respondents Rifat and Inam-ur-Rehman's with his knife and thereafter he fell near the gate and other persons started attacking him with lathis, sticks and knives and iron bar. At this time, respondent Ch. Ishaq shouted do not let deceased Lt. Anwar-ur- Rehman's go and respondent Shola shouted catch him in the rikshaw and do not allow him to escape. By this time deceased Anwar-ur-Rehman's has get into rikshaw, which was standing on the road about 70 to 80 paces away from the gate of the said house and respondents Ashfaq, Aftab, Javed, Anwar Total, Tallat, accused Gullu (now dead) and others surrounded the rikshaw and started attacking Anwar-ur-Rehman's with knives and sticks and deceased Anwar-ur- Rehman's lay in the rikshaw bleeding. Thereafter the assailants left the rikshaw, with deceased Anwar-ur-Rehman's in it, and moved away. Deceased Anwarur Rehman's dragged himself out of rikshaw and was bleeding and he moved towards Chorangi, but he fell on the ground about 30 to 40 paces from the said rickshaw and shouted for water and requested for being taken to hospital.
Thereafter, after the lapses of 5 to 10 minutes a taxi came in which S. H. O. Siraj Husain and policemen arrived on the scene. It is further alleged by the prosecution that S. H. O. Siraj Husain shouted at the assailants and others to go away. The prosecution further alleges, that deceased Mushtaq-ur-Rehman's died on the spot from the injuries which he had received near the gate of the house of Syed Ayub and deceased Lt. Anwar-ur-Rehman's also died in hospital as a result of the injuries received by him in this incident. It is further alleged, that the respondents on seeing the police on the spot, ran away. A crowd of many persons, it is alleged, had witnessed the incident, including the witnesses named by the prosecution. It is alleged that Siraj Husain, S. H. O., Liaquatabad Police Station started investigation of this case. He sent injured Anwar-ur-Rehman's and dead body of Mushtaq-ur-Rehman's to the hospital and recorded the statement of Syed Ayub, on the basis of which, F. I. R. Of this case, being Cr. No 314/1968, was registered at the Liaquatabad Police Station, Injured Shamim Ahmed, one of the respondents had earlier gone to the Police Station, Liaquatabad and recorded P. I. R. No. 313!68. Against two deceased persons, one Hameed and others and thereafter, it is alleged, that he and injured respondents Waseem Ahmed, Rafat Ali and Inam-ur-Rehman's were sent to the hospital. It is alleged, that the taxi and rikshaw mentioned in the prosecution case are stated to have gone away, after the deceased persons had got down from them.
3. On 26May. 1968, Mr. A. R. Khan, the father of deceased Anwarur Rehman's and uncle of deceased Mushtaq-ur-Rehman's, made an application to Assistant D. I. G. Karachi, in which, he showed his dissatisfaction on the investigation, which was being conducted by S. H. O. Siraj Husain and consequently, the investigation of the case was transfer--red to C. I. A. And Mr. Fazlur Rehman's, the then Police Inspector of C. I. A. Karachi was entrusted with the investigation, who took up the investigation of both the cases and after completing the same he challaned this case in the Court. On the aforesaid facts, as alleged by the prosecution it is asserted, that all the respondents including deceased accused Gullu formed an unlawful assembly and for unlawful object to cause injuries to the said two deceased persons and being armed with deadly weapons, like dandas knives. Chhuris and hockey sticks, followed the two deceased persons from Cafe Majestic to the house of Syed Ayub and thereafter caused them fatal injuries and thus all the respondents are stated to have committed offence of rioting armed with deadly weapons and thus it is alleged that all of them are responsible for the alleged offences.
4. The version of the respondents is, that they had no dispute with the two deceased persons previously and further that the two deceased persons had come armed and had actually caused injuries to respondents. Shamim. Waseem. Rifat and Inamur Rehman's at the place of first incident near Cafe Majestic. It is alleged by the respondents, that deceased Anwar--ur-Rehman's fired revolver on respondents Shamim and Waseem, while deceased Mushtaq-ur-Rehman's is stated to have caused injuries alongwith his companions to other injured persons. It is further alleged by the respondents that four injured respondents had fallen down there and were taken to the police station. Where respondent Shamim lodged his report. All the respondents have denied their presence at the place in and near the house of Ayub, where fatal injuries to deceased persons are stated to have been given.
5. The three respondents, namely, Aftab Nabi. Ashfaq Ahmad and Muhammad Abbas have not been served as they are not available and as such their cases have been separated and theth above appeal has proceeded against the remaining respondents. It may also be noted that one of the original accused Gulla died during the pendency of the trial.
6. The prosecution had led ocular evidence only and had examined in all 14 witnesses but of them seven were eye-witnesses. The prosecution further relied upon identification test of P. Ws. Qaim Ali and Abdul Wahab and on injuries on the persons of four respondents.
7. All the respondents above-named before the trial Court below had pleaded not guilty and denied all the allegations made against them. The stand taken by the respondents was, that they have been falsely implicated at the instance of P. W. Hussain Shah and P. I. Fazl-ur-Rehman's.
8. The fact, that Lt. Anwar-ur-Rehman's and his cousin Mustaqaq-ur---Rehman's died on 24th May.
1968, as the result of the injuries received by them in the front of the house of Syed Ayub cannot be disputed The medical evidence shows that deceased Lt. Anwar-ur-Rehman's had received in all 27 injuries which in the opinion of the P. W. Doctor Muhammad Umar Khan, were anti-mortem and appeared to have been caused by sharp-edged weapon like knife. Similarly, deceased Mushtaq- ur-Rehman's had received 2 injuries, which were anti-mortem according to medical evidence and appeared to have been caused by sharp-edged weapon like knife and blunt weapons, Ocular evidence is also to the effect, that the deceased persons had met their death on 24th May, 1968.
This fact is not disputed in defence. We are therefore, satisfied that Lt Anwarur Rehman's and Mushtaq-ur-Rehman's died, as a result of injuries received by them on 24th May, 1968, in front of the house of Syed Ayub, as held by the trial Court,
9. It is evident from the facts stated above, that this incident was witnessed by P. Ws, Ghulam Aziz, Muhammad Younus, Lai Khan, Abdul Wahab, Gohar Rehman's. Qaim Ali and Muhammad Ali the prosecution has also relied upon motive of enmity between the parties of respondent Anwar alias Total and Majeed Teddy The Special Judge (Central) and Ex Officio Additional Sessions Judge Karachi, disbelieved all this evidence and rejected the same for the reasons given by him his judgment and passed the acquittal judgment.
10. Before we discuss the merits of the case, brief reference to general principles, which are always taken into consideration while dealing with an acquittal appeal appeals necessary. We must keep in mind the basic decision of the Privy Council reported in AIR 1934 P C 227 (2) in this connection.
This finding has been followed with by our Supreme Court thereafter. In deciding an appeal against acquittal what is to be borne in mind is:---
(i) The view of the trial Judge as the credibility of the witnesses,
(ii) The presumption of innocence in favour of an accused, a presump--tion certainly not weakened by the fact that he has been acquitted at his trial.
(i.e) Right of an accused person to the benefit of any doubt.
(iv) The slowness of appellate Court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
It has been observed by the Supreme Court in an unreported Case (Criminal Appeal) No 27/61) that:- "It is true that an acquittal order passed by a trial Judge teas seen the demeanour .Of the witnesses in witness-box, should not be lightly set aside. As has been said by the Privy Council, the presumption of innocence is by no means weakened by the acquittal."
11. The fact that both the deceased were given fatal injuries in the front of the house of Syed Ayub on 24th May, 1968, at about 10 30 p.m. Is not open to dispute. Similarly, the fact that two deceased persons came in taxi near the Cafe Majestic and purchased pan etc. And reboarded the taxi and the taxi had started moving, when it was surrounded by certain persons including respondents Shamim, Wasim. Rifat and Inam-ur-Rehman's and deceased were made to get down from the said taxi and thereafter there was firing in which respondents Shamim and Waseem received bullet injuries, are also not disputed. The prosecution story, that deceased thereafter were chased and took shelter in the house of Syed Ayub and on breaking open of the doors of the said house, deceased came out and were attacked by certain persons with knives and dandas etc. And as a result thereof both the deceased received fatal injuries are also not disputed. However, the learned trial Court in appreciating the evidence produced by the prosecution has disbelieved the prosecution witnesses. As far as motive is concerned, trial Court also disbelieved the same by coming to the conclusion, that no evidence was led to prove, that deceased persons belonged to the party of Majeed Teddy.
12. We have heard Mr. R. A. Kureshi, learned counsel for the State, Mr. Sami Ahmed, learned counsel for respondents Shola and Ch. Ishaq. Mr. Murtaza Husain, learned counsel for respondents Javed, Tallat and Rais Ahmed, Mr. Hayat Muhammad Junejo, learned counsel for respondents Shamim, Waseem, Inam-ur-Rehman's, Anwar, Muhammad Ilyas and Munawar Khan and have taken into consideration submissions made by them as well as various authorities cited by them in respect of their respective contentions. We have also gone through the judgment of the trial Court and the reasonings on the basis of which, the trial Court came to its conclusion and acquitted all the respondents.
13. We have also noted that prosecution did not examine Syed Ayub, a person on the basis of whose statement F. I. R. In this case was recorded as well as S. H. O. Siraj Husain. I. O., who was Incharge of the investigation of this case as well as of case under F. I. R. No. 313/68, lodged by respondent Shamim, at the initial stage, before P. I. Fazeul Rehman's of C. I. A. Took over the investigation of this case. We have also noted, that the statements of prosecution witnesses under section 161, Cr. P. C. Were not recorded before 27th .May, 1968, except of P. W. 1 Ghulam Aziz by S. H.
O. Siraj Husain and none of the respondents were arrested before 2nd June, 1968. We have further noted, that no incriminating articles were recovered from any of the respondents and the prosecution evidence against the respondents is mainly ocular evidence and to some extent corroborative evidence, which is based on account of the injuries found on the persons of respondents Shamim, Waseem, Rifat and Inam-ur-Rehman's.
14. Prosecution had examined in all seven eye-witnesses out of which P. W. 1 Ghulam Aziz was witness only to the first incident near Cafe Majestic, whereas the remaining eye-witnesses are alleged to have seen the subsequent incident near the house of Syed Ayub also, where deceased Lt. Anwar-ur-Rehman's and Mushtaq-ur-Rehman's received fatal injuries and as a result thereof they both died.
15. We find that the learned trial Court rejected the evidence of P. W. 1 Ghulam Aziz, mainly, on the ground that the said witness had stated, that he knew respondents by faces and not by names to spite of this, this witness was not put to identification test. The trial Court also took into consideration that the copy of 161, Cr. P. C. Statement of this witness, which was recorded on 25th May, 1968, was not supplied to the respondents and as such the trial Court came to the conclusion that in the said statement this witness had not named the respondents at all. In vices of this, the trial Court did not believe statement of this witness. We also find from his statement before the trial Court that in examination-in-chief, he had stated that he knew Shola respondent as B. D. Member, before the incident and respondents Rifat, Inam-ur. Rehman's, Rais, Shamim and Waseem and others by faces only. Whereas in his cross-examination, he stated that he knew the names of respondents Shola, Rifat, Inam. Rais, Shamim and Waseem at the time when the taxi was surrounded. Before committing Magistrate, he did not give the names of these respondents and stated that he knew them by faces only but not by names. 1n view of these obvious and material contradiction in his statement, it cannot be said that the conclusions arrived at by the trial Court in respect of this witness were perverse or not at all supported by record of the case.
16. The evidence of P. W. Muhammad Younus was not believed by the trial Court on the ground, that he had falsely implicated one innocent person, namely, Vaqar Ahmed, in his statement under section 161, Cr. P. C. But he did not name him at all in his statement in Court. Besides this, the learned trial Court took into consideration the fact, that this witness in his statement did not mention anything about the alleged injuries that were inflicted on Inam-ur-Rehman's and Rifat by deceased Mushtaq-ur-Rehman's, when he came out from the house of Syed Ayub, although other eye-witnesses in their statements have stated so and as such the learned trial Court doubted the presence of this witness near the house of Syed Ayub and as such did not consider his testimony as trustworthy. It may be noted that the statement of this witness under section 161, Cr. P. C. Was recorded alter five days of incident.
17. The evidence of P. W. Lai Khan has been rejected by the trial Court on the ground that, as admitted by him in the lower Court, that he has a defective eye-sight and he could see a little in the dark night. Furth4r this witness had also falsely implicated Shehzad and Saleem as co-accused in his statement recorded under section 164, Cr. P. C. But in the trial Court, he omitted these names.
In view of this, the trial Court considered his evidence also as untrustworthy. It may further be noted that statement of this witness under section 161, Cr. P. C. Was recorded five days after the incident.
He further stated before the trial Court that S. H. O. Siraj Husain came on the site while he was still there and since S. H. O. Siraj Husain forced him to go away he was unable to give his name as an eye-witness to him. However when his statement was ultimately recorded by I. O. Fazeul Rehman's, He did not state so to him, otherwise this fact would have been noted by I. O. Fazeul Rehman's. We also find that to trial Court, he denied that be has a defective eye-sight and could not see in night time. Although he had stated so in the lower Court. This witness further stated that Mushtaq-ur- Rehman's had stabbed Rifat and Inam near the house of Syed Ayub ,and both of them did not fall down but left the scene alongwith other respondents. This evidence of his, is in contradiction with medical evidence of P. W. Dr. Muhammad Aleemul Haq, who in his deposition has categorically stated, that respondent Rifat would fall down and will be disabled after receiving the injuries in question.
18. The evidence of P. W. Abdul Wahab, yet another eye-witness has been rejected by the trial Court on the ground, that he had not named respondents Anwar Total and Tallat as accused persons in his examination---in-chief in lower Court. This witness further in his statement before the lower Court had stated that deceased Lt. Anwar-ur-Rehman's came out with knife from the house of Syed Ayub. Whereas before the trial Court, he stated that deceased Mushtaq-ur-Rehman's came out with knife from the house of Syed Ayub. In his statement before the trial Court he stated that he did not see deceased persons giving injuries to the accused persons when they came out from the house of Syed Ayub In view of this, the trial Court doubted the presence of this witness at the time of incident, it may further be noted that this witness was involved in City Court bomb case and was arrested from the house of Mr. A. R Khan, the father of deceased Anwar-ur-Rehman's. This witness also knew respondents Javed and Aftab prior to the incident but still he did not mention their names in his statement under section 161, Cr. P. C. To the police. This witness in his statement before the trial Court had stated that he knew Rifat, Rais, Javed and Tallat before the incident, but still in the identification test he failed to identify these respondents. It may also be noted that his statement under section 161. Cr. P. C. Was recorded after four days of the incident
19. The statement of P. W. Gohar Rehman's was rejected by the trial Court on the ground that he had approached S. H. O. Siraj Hussain soon after the incident when said S. H. O. Came on the site and told him that he was an eye-witness, but he was driven away by S. H. O. Siraj Husain, this fact he did not mention in his statement under section 161, Cr. P. C. Which was recorded by I. O. Fazeul Rehman's. He, in his statement before the trial Court stated, that Rifat and Inam received injuries near the house of Syed Ayub and after the incident, these two persons also ran away with the other respondents from the scene. This statement of the witness is in contradiction of the medical evidence of P. W. Dr. Muhammad Aleemul Haq, according to whom Rifat after receiving injuries would fall down and would become disabled. In view of all this the trial Court came to the conclusion that no reliance could be placed on his evidence. Furthermore, we have noted that his evidence regarding number of shot fired and the time of its firing near the Cafe Majestic is quite different from the other prosecution witnesses.
20. The statement of P. W Qaim Ali has been disbelieved by the trial Court on the ground, that his identification of other respondents besides Inam-ur-Rehman's and Rifat is doubtful as in the lower Court be had stated that he did not know other respondents even by faces. This witness had not given the names of the other respondents besides Rifat, Inam and Rais under section 161, Cr. P. C.
Statement. This witness had further stated that S. H. O. Siraj Hussain has refused to take his statement soon after the incident, but this fact he did not mention in his statement before I. O. Fazul Rehman's under section 161, Cr. P. C. It may be noted that this witness in his crown had admitted that he knew. Shola B. D, Member 213 months before this incident but still he did not pick up respondent Shola in identification test. This witness had not named respondent Shola in his statement under section 161, Cr. P. C at all
21. The last eyewitness P. W. Muhammad Ali has also been dis--believed by the trial Court on the.
Ground that he was not put to identification test and he suppressed the names of the alleged accused persons for six days. This witness knew the respondents by names prior to incident and as such the question of putting him to identification test did not arise. However, this witness had stated that S. H. O. Siraj Husain did not record his statement and abused him and as such he went away after the incident. However, this fact he has not mentioned in his state--ment under section 161, Cr. P. C. To I. O, Fazul Rehman's. It may be noted that this is the only witness who had stated that after the respondents ran away, rickshaw driver came back and. Took out the body of Lt. Anwar-ur- --Rehman's from the rickshaw and put it on the sand lying nearby and then he went away. This story of this witness is not at all corroborated by any other witness and as such this statement of this witness is in direct contra--diction of the evidence of the other eye-witnesses. This witness further does not mention about alleged injuries caused to respondents Rifat and Inam by deceased Mushtaq-ur-Rehman's when he came out from the house of Syed Ayub. In view of this, the presence of this witness at the time of incident is doubtful. This witness had further stated that after causing injuries to the deceased persons, all the respondents ran away from the scene. This statement of the witness is in contradiction with the medical evidence of P. W. Dr. Muhammad Aleemul Haq, as far as respon--dent Rifat is concerned.
22. The learned counsel for the State submitted before us, that the learned trial Court has not legally and correctly appraised the evidence of eye-witnesses and has drawn adverse inference on account of non---examination of certain witnesses of the locality, which was not warranted at all. In support of this contention, the learned counsel for the State relied upon cases reported in PLD 1976 SC 53 and 291. The law laid down by these authorities no doubt shows lack of civic sense on the part of the citizens to come forward and tell -the truth and as such non---examination of certain witnesses of the locality could be due to such rea--sons and as such, normally no adverse inference on this account alone, ought to be raised in this connection. However, in the present case, the learned trial Court his considered evidence of each eye-witness separately and for the reasons given in his judgment has rejected their evidence and as such, any adverse inference drawn by the trial Court on this account in its judgment, in our opinion, has not affected the conclusion arrived at by the trial Court. The second submission that was made by the learned counsel on behalf of the State was, that corroboration was not necessary to supplement ocular testimony and in this connection, the learned coun--sel for the State relied on case reported in PLD 1980 SC 225.
According to this authority conviction, even in murder cases. Held, can be based on testimony of a single witness, if the Court is satisfied as to wit--ness being reliable. There can be no dispute about the proposition of law laid down by this authority. But in the present case the trial Court has disbelieved the evidence of eye-witnesses on the various grounds mentioned in the judgment and has come to the conclusion that either these witnesses were not present at the time of incident or they were interested witnesses as they have tried to implicate innocent persons etc. The learned counsel for the State submitted, that no enmity is alleged by respondents against the prosecution witnesses at all. In fact four prosecution witnesses, have given the names of the respondents in their statements and as such their evidence has been wrongly rejected by the trial Court It is true that the respondents alleged no enmity against the prosecution witnesses, but their evidence has been rejected by the trial Court on the grounds men--tioned by us in the earlier part of this judgment In our opinion, the appraisal of the evidence of these eye-witnesses by the trial Court cannot be considered as perverse or contrary to the record of the case. The learned counsel for the State except for minor mistakes in the appraisal of evidence by the trial Court, did not point out any material irregularity or misreading of the evidence of said witnesses, by the trial Court.
23. The learned counsel for the respondents on the other hand, submitted that F. I. R. Which is the cornerstone of this case, does not contain the names of the respondents. They further pointed out, that even the father of the deceased Lt. Anwar-ur-Rehman's, in his application, dated 26May, 1968, which he made against S. H O, Siraj Hussain, also did not mention the names of the suspected persons and further no respondent was arrested prior to 28th May, 1968 and all these facts go to establish, that the names of the assailants were not known till 27th May. 1968 and as such the defence version, that it was the mob which attacked the deceased persons requires consideration The learned defence counsel further submitted, that the statements of all the eye-witnesses under section 161, Cr. P. C. Were recorded after 26th May, 1968, i.e. 3/4 days after the incident and as such the evident: of these witnesses cannot be relied upon. In support of these contentions, the learned counsel for the respondents relied upon the cases reported in PLD 1959 Lah. 442, PLD 1960 SC 223 and PLD 1960 Kar. 697. All these authorities supports the contentions raised by the learned counsel for the respondents, In case reported in PLD 1960 Kar. 697, it was held that eye-witnesses examined 48 hours after occurrence, the veracity of their evidence is doubtful. The learned counsel for the respondents submitted, that trial Court rightly rejected evidence of all these aye-witnesses, for the reasons, given by it, in its judgment. The learned counsel for the respondents relied on cases reported In PLD 1960 Kar. 621, PLD 1972 Lah, 596 and 1968 P Cr. L J 321 in respect of the rejection of evidence of P. Ws. Lal Khan and Muhammad Younus. Both of whom implicated innocent persons in their earlier statements The learned counsel for the respondents relied upon cast reported in 1968 P Cr, L J 176, for rejection of the evidence of P. Ws. Muhammad Ali and Gohar Rehman's as these witnesses have given different version, as P. W. Gohar Rehman's has given different version about the number of shot fired and the time of its firing, whereas P. W. Muhammad Ali has introduced a new version of rickshaw driver taking out the body of Lt. Anwar-ur-Rehman's from his rickshaw and putting it on sand after the respondents had ran away.
24. As far as the remaining witnesses are concerned, the learned counsel for the respondent's submitted, that on account of the contradic--tion and diverse statements given by them before the committal Court and trial Court and in their statements under section 161, Cr. P. C. Their evidence has been rightly rejected by the trial Court. In support of this contention, the learned counsel for the respondents relied upon cases reported in 1969 P Cr. L J 796 and 1970 P Cr. L J 287.
All these authorities supports the contention of the learned counsel for the respon--dents. The learned counsel for the respondents further submitted that P. Ws. Lal Khan, Gohar Rehman's and Muhammad Ali's statements. That respondent Rifat also ran away from near the house of Syed Ayub after causing injuries to the deceased persons, is in contradiction of the medical evidence of P. W. Dr Muhammad Aleemul Haq, according to whom the said respondent after having received the injuries which were found on his person would fall down and would be disabled and as such these witnesses are not speaking the truth or their presence, at the time of incident becomesth doubtful. In support of this contention, the learned counsel for the respondents relied on case reported in 1972 SCMR 74, which authority supports the contention of the learned counsel for the respon--dents. The learned counsel for the respondents further submitted, that failure of prosecution to examine S. H. O. Siraj Hussain the first investi--gating officer, who actually reached the scene soon after the incident and had examined more than 20 witnesses, without any reasons an adverse inference be drawn for his non-production as witness. 1n this connection, the learned counsel for the respondents relied on case in PLD 1979 Kar. 261. The learned counsel for the respondents further submitted that F. I. R. In this case was not at all proved.
25. It may also be noted that even if prosecution story about their being light on Chaja of Ayub's house is believed and presence of street lights on the road near the scene of the second incident is also accepted, then too, in our opinion, identification of so many respondents, including noticing of the weapons alleged to have been carried by each one of them and specific parts played by each one of them, in this second incident, could not have been noticed. As given by the prosecution witnesses in their statements. The street lights are always at distance and the lights coming from the houses on roads would not be sufficient for detailed observations as the prosecution witnesses have narrated in their statements. In view of this, in our opinion, the identification of the respondents by the prosecution witnesses in the circumstances of the facts of this case, as alleged by the prosecution seems to us doubtful.
26. It, may also noted that the explanation given by the State counsel about delay in recording 161, Cr. P. C. Statements of the prosecution witnesses on account of alleged connection of S. H. O. Siraj Hussain with the respondents, even if accepted, then too, the benefit of doubt of such lapses on the part of the investigating agency must go to the respondents, as none of the prosecution witnesses in their statements under section 161, Cr. P. C. To P.
1. Fazal Rehman's have stated that S. H. O. Siraj Husain either refused to take their statements or made them run away from the wardat.
27. It is apparent from the above discussions and observations made by us, that the appraisal of the evidence by the trial Court is based on cogent reasons and is in accordance with law laid down by the authorities discussed and cited above, and, consequently in our opinion, the findings A of the trial Court do not appear to be perverse. In our opinion, the prosecution has failed to prove guilt of the respondents beyond reasonable doubt. For all these reasons, we dismiss the above acquittal appeal and discharge the bail bonds of the respondents.
SAJJAD ALI SHAH, J.--I agree.