Abdul Shakoor, appellant alongwith Muhammad Hanif and Muhammad Afzal, was convicted under section 302/34, P. P. C. And was sentenced to imprisonment for life and a fine of Rs. 5,000 and in default of payment of fine to suffer further RA for three years by tire Additional Sessions Judge.
Sahiwal vide his order dated 21st December, 1978. He was also convicted alongwith afore- mentioned persons under section 452, P. P. C. Read with section 34, P. P.C. And was sentenced to three years' R.I. The learned Additional. Sessions Judge, also found the appellant, Muhammad Hanif and Muhammad Afzal guilty under sections 36b and 323, P. P. C. Read with section 34. P. P. C. And sentenced earn one of them three years' R. I. And six months' R.I. On each count. Muhammad Hanif and Muhammad Afzal were also awarded the same sentence as was awarded to the appel--lant under sections. 302 and 452, P. P. C. They too have filed separate appeals challenging the order of their conviction. This judgment will dis--pose of the present appeal as well as Crl. Appeal No. 132 of 109 filed by Muhammad Afzal and Crl. Appeal No. 133 of 1979 filed by Muhammad Hanif.
2. Abdul Shakoor, Muhammad Afzal and Muhammad Hanif appellants were tried alongwith Ghulam Ali, Muhammad Hassan, Muhammad Tufail, Muhammad Nawaz alias Maja and Nek Muhammad alias Neka under sections 148, 452, 366, 323, 302 read with section 149, P. P. C. Khizar Hayat son of Ghulam Ali resident of Chak No. 41 JQ-L was also challaned by the Police and was sent up alongwith the aforementioned persons to stand trial. He, however was murdered before the commencement of the trial. The learned Additional Sessions Judge, therefore tried the afore-- mentioned persons only Ghulam Ali, Muhammad Hassan, Muhammad Tufail, Muhammad Nawaz alias Maja and Nek Muhammad alias Neka were not found guilty and as such were acquitted by the learned Additional Sessions Judge.
3. The facts of the prosecution case as disclosed in the F.
1. R: Exh: PK lodged by Amir son of Shahabal resident of Chak No. 41/4-L on 5th December, 1973 at 8-30 a.m. At Police Station, Shahbhor were that on the night between 4th and 5th December. 1973 Amir was asleep in his residential house situated in Chak No. 41/4-L. His sisters Mst. Bashiran and Naziran were also sleeping on one cot, while his mother Mst Azmat and his third sister Mst Amiran were sleeping on another cot. At about mid-night, Khizar Hayat deceased came to the house of Amir and asked him to open the door. Amir, however, refused to open the door, where upon Khizar Hayat broke open the door and entered the house alongwith the appellants and their co-accused. Khizar Hayat and his father Ghulam Ali were armed with guns, while Muhammad Afzal appellant. Muhammad Hassan and Muhammad Tufail son of Ghulam Ali and Muhammad Nawaz alias Maja were armed with pistols. Muhammad Hanif appellant carried a rifle and Abdul Shakoor appellant was armed with a gun. After entering the house. Khizar Hayat deceased caught hold of Mst. Naziran by her arm Mst.
Amiran tried to intervene but Khizar Hayat fired a gun shot at her. Hanif appellant also fired a shot with his rifle at Mst. Amiran who after being hit fell down When Mst. Bashiran the other sister of Mst.
Naziran, tried to intervene, she was fired at by Ghulam Ali. She too fell down after being hit with the shot. Amir informant was given blows with butts of guns by Ghulam Ali, Abdul Shakoor and Muhammad Afzal appellants. The occurrence was also witnessed by Karim father of Amir and one Azam who were sleeping in the adjoining room. The appellants and their co-accused forcibly took away Mst. Naziran. Nek Muhammad alias Neka and two other persons who had remained standing outside the house, also went away with the appellants and their co-accused Mst. Bashiran and Mst.
Amiran succumbed to their injuries after some time.
4. According to Amir he and his brother Said had obtained ten Killas of land from Ghulam Ali Lambardar for cultivation as his tenants. Khizar Hayat deceased son of Ghulam Ali who used to visit the house of Amir, developed intimacy with Mst. Naziran sister of Amir. When Amir and Said Muhammad came to know about his illicit relations with Mst. Naziran, they asked him not to visit their house. Khizar Hayat felt offended and accordingly he resumed the possession of land which had been given for cultivation to Amir and Said as tenants. Sometime before the occurrence during the month of Ramazan. Khizar Hayat alongwith six other persons was found present at a Khala near the house of Amir at about Isha prayer time but he alongwith his companions left the place when alarm was raised by Amir. Later on, Khizar Hayat threatened Amir that he would forcibly take away his sister Mst. Naziran. Apprehending that Khizar Hayat might carry out the threat Mst.
Naziran alongwith her two sisters Mst Amiran and Mst. Bashiran was sent out of the village to stay with some relatives. It was on the day preceding the night of occurrence that Mst. Naziran and her sisters returned to the village. In the evening Mst. Amtul; mother of Khizar Hayat came to the house of Amir to enquire from him as to whether he would like to crush the sugar--cane or not. Amir and his brother told her that they were not interested in the crushing of sugarcane whereupon she left the house.
5. Muhammad Hussain S.I. Who mostly investigated the case was not examined as witness at the trial as he had died before he could be produced as witness in Court. Allah Ditta, A.S.I P.W.12 who was posted at Police Station, Shahbhor when the occurrence had taken place was, however, examined by the prosecution to prove the handwriting and signature of Muhammad Hussain deceased Muhammad Hussain deceased had secured blood-stained earth from two places in the house of Amir when the dead bodies of Mst. Amiran and Mst. Bashiran were found. He had prepared memo Exh. PE and memo Exh. PF. In that connection. He had prepared inquest report Exh.
PL of Mst. Amiran and inquest report Exh. PM of Mst. Bashiran Injury statement Exh. PN of Mst.
Bashiran and injury statement Exh. PO of Mst. Amiran were also prepared by him. Similarly he had prepared the injury statement Exh. PO of Muhammad Amir PW. Last worn clothes of Mst. Bashiran deceased were taken into possession by Muhammad Hussain vide memo. Exh: PR. Similarly the last worn clothes of Mst. Amiran were secured by him through memo Exh. PS. Site-plans Exh . P. D. And Exh. P. D. I were also got prepar--ed by Muhammad Hussain and the same bore his signatures.
Allah Dad A.S.I, who appeared as P. W. 12 proved the aforementioned documents to be in the handwriting of Muhammad Hussain deceased. He also identi--fied his signatures on the said documents. Similarly he proved recovery memos. Exh. PT, Exh. PU, Exh. PG and Exh. PH also to be in thehand--writing of Muhammad Hussain deceased.
6. PW 12 Allah Dad A.S.I. Had also remained associated with the investigation of the case. On 28th December, 1973 he had recovered pistol P-7 with two live cartridges P-8/1-2 from the tube-well of Ghulam Nabi, at the instance of Muhammad Tufail accused. The pistol and the cartridges were taken into possession vide memo, Exh.,PJ.
7. During the investigation of the case, Sami Ullah, Sana Ullah and At a Muhammad sons of Abdul Haq, residents of village Nekokara, District Jhang were also found to have joined the appellants and their co-accused in committing the offences but they could trot be apprehended and were declared as proclaimed offenders.
8. As noticed above the appellants and the acquitted accused namely, Ghulam Ali, Muhammad Hassan, Muhammad Tufail, Muhammad Nawaz alias Maja and Nek Muhammad alas Neka only stood the trial. They did not admit the charge and, the prosecution in order to prove its case examined as many as 12 witnesses. The evidence of Mirza Ashfaq Beg Draftsman, PW 2, Shamim Ahmad, A.S.I. P. W. 3, Riaz-ul-Haq F.C. No. 738 PW 4 and Ghulam Yasin -F-C No. 1063. P.W.5, was of formal nature. Sardar Ahmad PW 6 was present at the-place of occurrence when the investigating officer had secured blood-stained earth and had taken into possession crime empties of .12 bore gun P-1 to P-3 and crime empties of rifle P-4 to P-6. He had attested the recovery memos prepared by the investigating officer. PW 7 Said Muhammad had witnessed the recovery of pistol P-7 alongwith two live cartridges P-8/ 1-2 effected by the police at the instance of Muhammad Tufail accused. He had attested recovery memo Exh. PJ which was prepared at the time of recovery. Raja Muhammad Nawaz PW 8 was posted as S.H.O. Police Station, Shahbhor on 16th May, 1974. He had recovered Mst. Naziran from the Baithak of Khizar Hayat deceased which was situated in Jahaz Ground, Sahiwal. He had got her medically examined on 23rd May, 1974 and on the same date had got her statement recorded under section 164, Cr. P. C. Amir P. W. 9, Mst. Naziran P. W. 10 and Mst.
Azmat PW 11 gave the ocular account of the occurrence Dr. Muhammad Ashraf was examined as P.
W. 1 by the prosecution as he had held autopsy on the dead bodies of Mst. Amiran and Mst.
Bashiran and had also examined Muhammad Amir P. W. He had performed the post-mortem examination on the dead body of Mst. Amiran on 6th December, 1975 at 11 a.m. And had found the following injuries on the dead body :--
(1) A fire-arm entrance wound ----- x 1/3--- on the left iliac fossa 3 --" below and to the left of umbilicus 2--- from the median line. The bullet had entered the abdomen and injured the right iliac vessels and fractured the anterior part of right ilieum and was found in the right buttock in two pieces.
(2) A fire-arm entrance wound 1/3" x 1/3" on the left side of abdomen 1/3" external to umbilicus. The bullet had entered the abdomen and injured right iliac vessels and was found near the front of left sacro--iliac joint. Small piece of bullet was also found during the course.
(3) A fire-arm entrance wound J" x J" on the antero-lateral side of left buttock. It was half inch in depth. The bullet had struck the ilieum and had reversed its course and thrown out of the same wound.
(4) A bruise 2" x 3,'4" on the left lateral aspect of the abdomen.
Internal examination of the dead body showed that all the organs were healthy except already mentioned above. Stomach contained five ounces of semi-digested meals. Duration between, death and post-mortsm was 30 to 36 hours. On the same day at 10-00 a.m. He had performed the post--mortem examination on the dead body of Mst. Bashiran and had found the following injuries on her dead body :-
(1) A fire-arm entrance wound 1/3" in diameter, with blackened edges on the right pectoral region 3" above the nipple in the right third intercostal space with an Exit wound 2j" x 1-3/4" on the left renal angle During the course, right lung, right side of the heart, diphragm and left kidney were injured through and through. Second lumbar vertebra was also fractured during the course. Liver was also injured. Direction of the injury was from above downward and from right to left.
(2) A bruise 1" x 1/4" on the, lateral side of left shoulder.
(3) An abrasion 1/2" x 1/2" on the back of right elbow.
(4) Abrasion 1/2" x 1/2" on the back-of right knee.
On internal examination all the organs were found healthy except already mentioned above. On 6th December., 1973 at 1-00 p.m. Muhammad Amir P. W. Was examined and the following injuries were found on his person :-
(1) A diffused swelling 3" x 2" on the postero-medial side of upper part of right fore-arm.
(2) A superficial abrasion 1 J" X 1 /3" on the left lateral side of neck 1" below the left ear.
(3) An abrasion 2" x 1" on the front of right knee.
(4) Abrasion I/4" x 1/4" on the right knee.
Injuries were simple and were caused within the duration of 48 hours with blunt weapon.
9. As noticed earlier, Allah Ditta A.S.I. P.W.12 was examined to prove the documents which were in the handwriting of Muhammad Hussain deceased who had investigated the case. He also deposed with regard to the part of the investigation of the case which was conducted by him.
10. After the close of the prosecution case the statements of the appellants and their co-accused were recorded. Ghulam Ali stated that Anwar Bodla was inimically disposed towards him and his son Khizar Hayat deceased on account of some dispute regarding allotment of land and that he being an influential person had got them falsely implicated in the present case. Muhammad Tufail, Muhammad Hassan and Muhammad Afzal also made similar statements as made by their father Ghulam Ali, Nek Muhammad alias Neka and Muhammad Nawaz alias Maja too stated that they had been falsely implicated due to enmity with the complainant, in the case at the instance of Anwar Shah Bodla. Abdul Shakoor appellant stated that Muhammad Hussain deceased S.H.O. Had falsely implicated him in the case at the instance of Nur Nabi and Mahboob Shah cousins of Anwar Bodla. He also tendered in evidence Exh. DE copy of order dated 6th March, 1974 passed by the Sessions Judge, Exh. DF copy of order dated 8th January, 1977 passed by the Additional. Sessions Judge and certi--fied copies Exh. DG and Exh. DH of the statements of Mahboob Shah and Noor Nabi P. Ws. Respectively. No other evidence was led by the appellants or their co-accused in defence.
11. After analysing the prosecution evidence and considering the plea taken up by the appellants and their co-accused, the learned Addl. Sessions Judge found that the ocular, account of the gunshot injury which Ghulam Ali accused had caused to Mst. Bashiran and as a result of which she had died, was not supported by the medical evidence. The learned Additional Sessions Judge came to the conclusion that ocular testimony with regard to the participation of Khizar Hayat deceased. Hanif. Abdul Shakoor and Afzal appellants in the commission of the offence with which they were charged was consistent, cogent and credible. The prosecution had, however, failed to prove its case against Ghulam Ali, Muhammad Tufail, Muhammad Hassan, Muhammad Nawaz, alias Maja and Nek Muhammad alias Neka beyond reasonable doubt. The learned Additional Sessions Judge, therefore, acquitted the aforementioned persons.
12. Learned counsel appearing or, behalf of Abdul Shakoot appellant has contended that the appellant has been falsely implicated in the case due to enmity with the Investigating Officer.
There was no motive for him to join Khizar Hayat deceased and his brothers either for committing the offence of murder or of abduction of Mst. Naziran. He was not rela ted to the aforementioned persons. He also did not belong to the village where the occurrence had taken place.
13. Learned counsel appearing on behalf of Muhammad Afzal appellant has contended that the role attributed to him by the prosecu--tion that he had caused injuries on the person of Muhammad Amir P. W. 9 has not been proved because all the three eye-witnesses have made inconsistent statements in this connection. Mst. Azmat P. W. 11 does not mention his name as one of the persons who had given beating to Muhammad Amir P. W.
9. During the course of cross- examination, Muhammad Amir P. V4! 9 also omits his name wh; n he gives the names of the accused who had given him beating Although Mst. Naziran P. W. 10 has mentioned the name of Muhammad Afzal appellant as one of the persons, who had given beating to her brother Muhammad Amir, no reliance should be placed on her testimony because of contradictory statements made by her before the Magistrates who had recorded her statement under section 164, Cr. P. C.
14. As regards Muhammad Hanif appellant, it has been contended by his counsel that the ocular evidence produced by the prosecution is highly unreliable. The occurrence had taken place in a dark night and as such it was difficult to establish the identity of the alleged assailants. The ocular evidence is also inconsistent with the medical evidence.
15. Learned counsel appearing on behalf of the State has argued that Abdul Shakoor appellant has been assigned a specific role in the F.I.R. His presence at the place of occurrence is stated by all the eye--witnesses. Similarly the role played by Muhammad Hanif appellant has been amply proved by the eye-witnesses that he was armed with a rifle with which he had fired at' Mst. Amiran. The medical evidence supports the ocular testimony that Mst. Amiran's death was caused by rifle shots. According to the learned counsel for the State, Muhammad Afzal appellants conviction is justified in view of the provisions of section 34, P. P. C. As his presence at the place of occurrence has been proved by the prosecution.
16. I have considered the arguments of the learned counsel for the appellants and the learned counsel for the State. I have also gone through the record of the case carefully. It has been found that the appellant's conviction is based on the ocular testimony of Muhammad Amir P. W. 9 Mst.
Naziran P. W. 10 and Mst. Azmat P. W.
11. It has also been noticed that the eye-witnesses deposition with regard to the gunshot injury caused to Mst. Bashiran resulting in her death has not been believed by the learned Additional Sessions Judge as it has been found inconsistent with the medical evidence. Similarly the learned Additional Sessions Judge has not accepted their testimony with regard to the participation of Ghulam Ali. Muhammad Tufail, Muhammad Hassan, Muhammad Nawaz alias Maja and Nek Muhammad alias Neka accused in the commission of the offence" with which they were charged and it has been found that the prosecution has failed to prove its case against them beyond reasonable doubt. In other words the ocular testimony in the present case has neither been accepted in toto nor has it been wholly rejected by the learned Additional Sessions Judge, who has followed the rule laid down in Mst. Samano v. The State (1973 SC M.R 162) that the principle embodied in the maxim falsus in ono falsus in omnibus" is not applicable to administration of criminal justice in this country and it is the duty of the Court to sift the grain from the chaff. How far the learned Additional Sessions Judge was justified in holding the appellants guilty on the basis of ocular evidence that had been rejected by him as against the acquitted accused requires a detailed examination.
17. The background leading to the occurrence in the present case has been given by Muhammad Amir P. W. 9 in the F.I.R. Exh. P. K. And also in his statement made by him at the trial. According to Muhammad Amir the trouble had started when be and his brother Said bad come to know that Khizar Hayat deceased had developed illicit relations with Mst. Naziran and for that reason they had asked Khizar Hayat deceased not to visit their house. Since Muhammad Amir and his brother Said were cultivating the land of Khizar Hayat deceased and his father Ghulam Ali as tenants they were dispossessed from the land soon after they had stopped Khizat Hayat deceased from visiting their house. Muhammad Amir PW-9 has stated that no complaint was made against Khizar Hayat deceased and Ghulam All after they had forcibly ejected him from the land. After some time Khizar Hayat deceased alongwith certain persons had made an attempt to abduct Mst. Naziran but they had failed in their design. According to Muhammad Amir P. W. 9 the incident was reported to the Police who had come to the village and had taken Muhammad Afzal appellant and his father Ghulam Ali with them, though later on they were let off. The prosecution has not placed on record the copy of the report which was allegedly made by Muhammad Amir's brother Said. After the aforementioned abortive attempt to abduct Mst. Naziran Khizar Hayat deceased and his father had threatened that they would forcibly take away Mst. Naziran from her house. It was after the above threat that Muhammad Amir P. W. 9 and his brother had sent away Mst. Naziran, Mst. Bashiran and Mst. Amiran to some other village where they had stayed with their relative for about seven days and then had returned to Chak No. 41 /4L to their parent's house on the day preceding the night of occurrence. It is difficult to appreciate in the first place when Mst. Amiran and Mst. Bashiran were sent away from the house when Khizar Hayat deceased and his father had threatened to abduct Mst. Naziran only, and secondly, why all the three sisters had returned to their house after seven days because there is nothing on the record to show that Khizar Hayat deceased and his father had changed their mind and that there was no longer any apprehension of Mst. Naziran's abduction. In order to show that the appellants and their co-accused including Khizar Hayat deceased came to know about the return of the three sisters in the village, Muhammad Amir P. W.
Has introduced the story of the visit of Mst. Amtul, mother of Khizar Hayat deceased to his house.
Accor--ding to Muhammad Amir she had come to his house to enquire whether they would like to crush the sugar-cane or not. It is difficult to believe that in view of the strained relations between the parties and after Muhammad Amir and his brother Said had been ejected from the land which they used to cultivate as tenants. M--t. Amtul would have come to their house to enquire about the crushing of sugarcane. As noticed earlier the story of Mst. Amtul's visit to the house of Muhammad Amir P.W. Has been concocted to provide an important link in the chain of the prosecution story that the appellants and their co-accused had come to know that Mst. Naziran alongwith her two sisters had returned to her parents' house. According to the prosecution case, the appellants and their co-accused had forcibly entered into the house of Muhammad Amir with the main object of taking away Mst. Naziran by force. Khizar Hayat deceased, after entering into the room, had caught Mst. Naziran by arm and had tried to drag her out of the room when Mst. Amiran intervened. She was fired at both by Khizar Hayat deceased and Muhammad Hanif appellant. When Khizar Hayat deceased again tried to take away Mst. Naziran with him, her second sister Mst. Bashiran intervened and she too was fired at by Ghulam Ali, one of the acquitted accused. It is surprising that Mst. Azmat mother of Mst. Naziran had not tried to rescue her as admitted by her in her cross-- examination. According to her she had escaped unhurt because she had not intervened to rescue her daughter Mst. Naziran. Muhammad Amir P. W. 9 was given beating by some of the accused but that beating was not given to him as he had tried to rescue his sister Mst. Naziran. Even the number and nature of injuries found on his person indicate that he was not assaulted for offering any resisteace to the accused. According to the prosecution story Shahbal, father of Muhammad Amir, Karim and Azam were also sleeping in the southern kotha of the house at the time of occurrence.
Muhammad Amir P. W. 9 has stated that they had also witnessed the occurrence, though according to Mst. Naziran P. W. 10 they had not come out of the kotha at the time of occurrence.
Mst. Azmat P. W. 11 has also stated that the aforementioned persons had not come out of the kotha as the accused had chained its door from outside, though in her cross-examination she has stated that they had succeeded in breaking open door of the kotha after the accused had run away. From the aforemention-' statement of the eye-witnesses this much is eviaent that Shahbal, Karim and Azam were present in the house in which the occurrence had taken place, but they had not tried to rescue Mst. Naziran from the accused. It is not possible to accept Mst. Azmat's explanation that they were not able to do so because they could not come out of the kotha in which they were sleeping after the accused had chained the door of the said kotha from outside because Mst.
Azmat has stated than they were able to break open the door of the koiha after the accused had left the place of occurrence. If they were present in the house at the time of occurrence as stated by all the three eye-witnesses, question arises why had they not tried to rescue Mst. Naziran from the accused. Similarly why Mst. Amiran P. W. 11 and Muhammad Amir P. W. 9 remained silent spectators and made no effort to rescue Mst. Naziran. It is also diffcult to appreciate why only Mst.
Amiran and Mst. Bashiran came forward to rescue their sister. A possible inference which may be drawn from the above circumstances is that the occurrence had not taken place in the manner stated by the prosecution. It has been suggested in cross-examination to Mst. Naziran P. W. 10 who was allegedly abducted by the accused that her sisters Mst. Amiran and Mst. Bashiran were murdered by Amir and Azam P. Ws. As they were women of easy virtue. A similar suggestion was also put to Mst. Azmat P. W. I1 that on the night of occurrence Mst. Bashiran and Mst. Amiran were found in compromising position with Qudratullah Bodla and one other person, and that it was for that reason that they were murdered by Azam and Amir P. Ws. Although the aforementioned suggestions have been denied by both Mst. Naziran and Mst. Azmat, it does raise a suspicion in one's mind as to the correctness of the prosecution version. The presence of Muhammad Amir P.W.9 at bite time of occurrence appears to be highly doubtful. The mere fact that 4 injuries were found on his person by the medical officer when he appeared before him for medical examination on 6th December, 1973 at 1-00 p.m. Does not prove his presence at the time of occurrence, because the said injuries were simple in nature and had been caused within the duration of 48 hours whereas the occurrence had taken place within 30 to 36 hours because according to Dr. Muhammad Ashraf P. W. 1, who had conducted post--mortem examination on the dead bodies of Mst. Amiran and Mst. Bashiran, probable time that elapsed between death and post-mortem examination was from 30 to 36 hours. The death of Mst. Amiran had occurred within one hour after the infliction of injuries, while in case of Mst. Bashiran it had occurred instantaneously. The injuries found on the person of Muhammad Amir P. W. 9, therefore, had been caused at least about 12 hours before the occurrence. Considering the nature and number of injuries, the possibility that the same had been self-suffered by Muhammad Amir also cannot be ruled out. In view of all the aforementioned circumstances it is highly improbable that the occurrence had taken place in the manner as stated by the prosecu--tion.
18. It is an admitted fact that all the three eye-witnesses are closely related inter se. They are also related to Mst. Bashiran and Mst. Amiran deceased. It is also an undisputed fact that they are inimical towards Ghulam Ali and his son as the latter had dispossessed Muhammad Amir and his brother Said from their land and also because there was a suspicion that Khizar Hayat deceased had had illicit relations with Mst. Naziran who later on, had eloped with him. Now even if the conclusion arrived at in the preceding paragraph is not accepted, the testimony of the aforementioned eye-witnesses is highly unreliable. In view of the acquittal of five accused in the present case conviction of appellants on the basis of evidence of the aforementioned witnesses who are admittedly interested witnesses can be maintained only if their testimony is corroborated by some independent evidence. Reference in this connection may be made to Ghulam Muhammad and others v. The State (1977 SCMR 115).
19. The occurrence in the present case is said to have taken place at about mid-night. According to Muhammad Amir P. W. 9 there was moon in the sky but that fact was not mentioned by him in the F.I.R. Exh. P. K. Where he had only stated that a dewa was lit in the kotha when Khizar Hayat deceased gave a knock at the door and asked him to open it. The investigating officer had tailed to take into possession the aforementioned Dewa when he visited the place of occurrence. The learned Additional Sessions Judge has not taken serious notice of the aforementioned omission on the part of the Investigating Officer as he has remarked that the prosecution case should not suffer on account of inefficient or dishonest investigation of the case by the police. It is true that every lapse on the part of the Investigating Officer cannot prove fatal to the prosecution but to the present case failure of the investigating officer to take into possession Dewa is not an insignificant matter. It was an important link in the chain of the prosecution story inasmuch as its presence at the place of occurrence would have shown that the eye--witnesses had been able to identify the accused as stated by them adverse inference can legitimately be drawn against the prosecution on account of the failure of the Investigating Officer to secure the Dewa from B the place of occurrence. It becomes doubtful whether the eye-witnesses could identify the accused in a dark night when the occurrence had allegedly taken place.
20. Muhammad Amir P. W. 9, Mst. Naziran P. W. 10 and Ms t. Azmat P. W. 11 have stated that Muhammad Hanif appellant had fired a shot with his rifle at Mst Amiran and that Khizar Hayat deceased had also fired a shot at her with his gun. The post-mortem examination report of Mst Amiran, however shows that she had received three fire-arm injuries and each of these injuries was caused by a bullet. It is evident that the ocular evidence regarding gunshot fired at by Khizar Hayat deceased stands contradicted by medical evidence. It is also to be noticed that none of the aforementioned eye-witnesscs has stated that Muhammad Hanif appellant had fired more than one rifle shot. Thus the other two fire-arm injuries noticed on the body of Mst. Amiran remained un- -explained. Muhammad Amir P. W. 9 had stated that Mst. Amiran was tired at and was hit while she was facing towards West. Her assailants were also standing towards the West from the place of occurrence. Mst. Nazi ran P. W.-10 has disclosed that Mst. Amiran was fired at when her face was towards the East while her assailants namely Muhammad Hanif and Khizar Hayat deceased were towards the West. A similar statement has been made by Mst. Azmat P. W.-11. Apart from the inconsistency noticeable in the statement of the eye-witnesses, it may be seen that the seat of Injuries Nos. 1, 2 and 3 on the person of Mst. Amiran as shown in Skiagram Exh. P. A./1 clearly belies the eye-witnesses that these injuries could have been caused by the assailants while standing towards the West of Mst. Amiran when she was facing towards the East because at least Injuries Nos. I and 2 which had been caused on the abdomen of Mst. Amiran could not have been caused from the position as stated by the eye-witnesses. It was therefore, highly unsafe to rely on, the testimony of the eye-witnesses, which, as noticed above is incosistent with the medical evidence for holding Muhammad Hanif responsible for having caused the death of Mst. Amiran. It may not be out of place to mention here that the prosecu--tion has failed to connect the rifle which was allegedly recovered from Muhammad Hanif appellant on his pointing out vide memo. Exh. P. U. With the commission of the murder of Mst Amiran.
20. The eye-witnesses in the present cage have also made inconsistent statements with regard to the role attributed to Abdul Shakoor and Muhammad Afzal appellants. Muhammad Amir P. W. 9 has deposed that Shakoora, Ghulam Ali, Tufail, Afzal and Maja had given him beating with the butts of their weapons.' It may be noticed that Maja. Afzal and Tufail were allegedly armed with pistols.'
To what extent injuries could be caused with the butts of pistols can be well imagined by looking at the nature of injuries found on his person at the time of his medical examina--tion. In his cross- examination he substituted the name of Hassan for Muhammad Afzal appellant as one of the assailants At a later stage in the course of his cross-examination he came out with a third version that Hassan had not given him beating. Mst. Naziran P. W. 10 has stated that Shakoora and Afzal only had attacked his brother Muhammad Amir with the butts of their weapons. In her cross- examination she, however, has stated that she had not disclosed in her statement before the Police that Ghulam Ali, Shakoora and Afzal had given beating to her brother. Mst Azmat P. W.-11 has deposed that Hanif, Ghulam Ali. Shakoora and Tufail had given beating to Muhammad Amir P. W. It is interesting to note that she had not mentioned the name of Abdul Shakoor in her state merit Exh.
D.B. Before the police. Thus in view of the inconsistent statements by eye-witnesses it is difficult to find what part had been played by Abdul Shakoor and Muhammad Afzal appellants at the time of occur--rence. Abdul Shakoor is not related to Ghulam Ali and his sons nor is he a resident of Chak No. 41/4-L where the alleged occurrence had taken place. The prosecution has not been able to show as to what interest or motive he had in joining hands with Ghulam Ali and his sons for committing the offences with which he was charged. He was allegedly armed with a gun at the time of occurrence but the same was not recovered from him after his arrest. Similarly the pistol which Muhammad Afzal appellant was allegedly carrying at the time of occurrence was not recovered from him. The learned Additional Sessions Judge has disbelieved Muhammad Amir P. W.
9 as he has not accepted his testimony that Ghulam Ali, Maja and Tufail had given him beating.
There appears no plausible reason why his testimony should have been accepted against Abdul Shakoor and Muhammad Afzal appellants.
22. The conviction of the appellants under section, 366, P. P. C. Is mainly based on the testimony of Mst. Naziran P. W.
10. According to her she was allegedly taken away against her will from her house on the night of occurrence by Muhammad Tufail, Khizar Hayat deceased, Maja, Hassan, Muhammad Hanif and Afzal appellants. He was kept at various places till she was recovered from the house of Khaliq Qureshi, situated in Jahaz Ground, Sahiwal, when Khizar Hayat deceased was also present. After seven days of her recovery her statement was recorded by a Magistrate under section 164, Cr. P. C. On 23rd May, 1974 Earlier her statement under section 164, Cr. P. C. Was recorded by another Magistrate on 13th December, 1973 at Lahore in which she had exonerated the accused. She had also filed an affidavit in the High Court in support of the accused when their petition for bail was considered. She has tried to explain that her earlier statements were made under duress as Khizar Hayat deceased had threatened her and had compelled her to make state--ments in favour of the accused. She had remained at Karachi for 3 months but she could not complain against Khizar Hayat and his co--accused either with regard to her own abduction or regarding the murder of her sisters. It is difficult to believe that she could not find any opportunity during her six months stay with Khizar Hayat deceased and other accused to inform any person about her abduction and murder of her D sisters. No reliance therefore can be placed on her even with regard to the story of her alleged abduction. She was more than sixteen years old when she was allegedly abducted. In the absence of any reliable evidence it is not possible to hold that she was forcibly taken away from her house.
23. The upshot of the above discussion is that the prosecution has failed to establish its case beyond reasonable doubt against the appellants. Their appeals are accordingly allowed and the order of conviction and sentence passed against them is set aside. The appellant shall be released forthwith it they are not required in any other case.