Umar Hayat, Khizar Hayat and Muhammad Hayat were tried by the Sessions, Judge Faisalabad under section 302/201/34, P. P. C. For the murders of Mst. Jannat Bibi, Ghulam Abbas, Muhammad Ilyas and Mst. Qaisara Bibi deceased and for attempting to cause the evidence of the commission of the said offences to disappear. The learned trial Judge, by his judgment dated 14th January, 1980 convicted the said three accused under section 382/34, P. P. C. On four counts and sentenced each of them to suffer life imprisonment on each of the four counts and also to pay Rs. 10,000 on each of the four counts or, in default, to suffer further R. I. For three years on each of the said counts. The learned trial Judge also ordered that the substantive sentences would run concurrently and that out of the fine, if realized, half of the amount would be paid to the legal heirs of the deceased persons as compensation under section 544-A, Cr. P. C.
2. The brief facts of the case are that about 10/11 years before the filing of the complaint Exh. P. Y. On 7th July, 1977 by Abdul Ghafoor Khan P. W. 1 at Police Station Khoshab, District Sargodha, Mst. Jannat Bibi, in pursuance of her illicit intimacy, eloped with the said complainant and solemnized her marriage with him in accordance with Muslim rites. Out of his marriage, Ghulam Abbas (aged about ten years), Muhammad Ilyas (aged about four years) and Mst. Qaisar Bibi (aged seven years) were born. During the period of her marriage with the complainant, she and her brothers were on visiting terms with each other on account of rapprochement effected between them but in their hearts Mst. Jannat Bibi's brothers nursed rancour against her and the complainant. On 4th July, 1977 at about 12-00 noon Muhammad Hayat accused came to the house of the complainant, when Sikandar Hayat P. W. 12 and Lal Khan (given up P. W.) were present there. Muhammad Hayat accused requested the complainant to send Mst. Jannat Bibi with him as she was requested to bring back his mother from Jaranwala where she had gone on being annoyed with them.
Thereupon the complainant accorded permission to Mst. Jannat Bibi deceased to accompany him (the accused Muhammad Hayat). She took alongwith her three children. When she left the house of the complainant, she was wearing chicken shirt of Rosy Colour, dopatta of green colour and a khussa in her feet, and also rings of gold in her ear. She was also wearing a burga at that time.
Ghulam Abbas was wearing shalwar and kurta of light blue colour with chappal of brown colour on his feet. Muhammad Ilyas was wearing trivera clothes with a Bata sandal on his feet. Similarly Mst.
Qaisar Bibi was wearing a flowery suit of Shamaman and six earrings of gold. At that time, Mst.
Jannat Bibi promised to come back on the evening of 5th July, 1977. Since she alongwith her three children did not return home, till the morning of 7th July, 1977 the complainant strongly suspected Muhammad Hayat accused of having caused their abduction with the intention of committing their murder and with the ulterior object of taking revenge of their alleged disgrace. Accordingly, he lodged complaint Exh. P. Y. At Police Station, Khushab, on the basis of which the case was formally registered and the investigation thus commenced.
3. In the meantime, on 4th July, 1977 at about peshiwela the three accused with Mst. Jannat Bibi and her three children were seen standing at the bus-stop at Sargodha by Sardar Muhammad P.
W. 13 and Muhammad Nawaz (not produced). Later towards degerwela the said three accused and Mst. Jannat Bibi with her three children were seen alighting from a bus coming from Jaranwala at bus-stop on canal. Bridge near Bungalow Farida. Tehsil Jaranwala, by Muhammad Sharif P. W. 14 and Nazar Muhammad (not produced).
4. On 7th July, 1977 at about noon, two dead bodies, .One of a by aged about 11/12 years and the other of a girl aged 8/9 years, were dis--covered in Tandlianwala Distributory by Muhammad P.W.
10 and Khadim Hussain and Bakhsh (P. Ws. Not produced) in the area of Chak No. 398/GB, Police Station, Tandlianwala. The dead body of the girl had a kurta P. 5 on it, whereas, the dead body of the by had a shalwar P. 6 on it, which clothes were taken into possession, vide memos. P. E. And P. F.
Respectively. The recovery of the kurta P. 5 was witnessed by Muhammad Aslam F. C. P. W. 4 and Sana Ullah S.-I. P. W. 19 and the recovery of the shalwar was witnessed by Sana Ullah S. I., P. W. 19 and Muhammad Aslam F. C. P. W.
4. On the basis of these recoveries, F. I. R. Exh. P. O. Of Khadim Hussain (not produced) was recorded by Sana Ullah S -I., P. W. 19 Police Station, Tandlianwala the same day at 4-30 p.m.
5. The same day at 6-30 p.m., Dr. Ahmad Saeed P. W. 1 conducted the post-mortem examination on the two dead bodies recovered that day and found on their persons one incised wound each on their necks cutting the necks through and through. He found both the dead bodies swollen and decomposed. The eye-balls and mouth of both the dead bodies were protruding and open and the superficial skin peeled off. He found a cotton shalwar on the dead body of the by and a shirt on the dead body of the girl. Probable time between injuries and death, in both the cases, was immediate and that between death anti post-mortem examination, in both the cases, was opined to be three to six days. The said doctor gave the kurta P. 5 and shirt P. 6 to Muhammad Aslam F. C.
P. W. 4.
6. On 9th July, 1977 Sikandar Khan P. W. 12, Abdul Ghafoor P. W. 16 and Ghulam Sarwar (not produced) went to Police Station, Tandlianwala, where they identified the two dead bodies and kurta P. 5 and shirt P. 6 as that of Mst. Qaisar Bibi and Ghulam Abbas deceased, the children of Abdul Ghafoor P. W.
16. Muhammad Sana Ullah S.-I., P, W. 19 recorded statements D.B. And D. E. Of Sikandar Khan P. W. 12 anal Abdul Ghafoor P. W.. 16 and also that of Ghulam Sarwar (not produced).
7. On 11th July, 1977 at about 5 p.m., two further dead bodies, one of a lady aged 32/35 years and the other of a by aged 4/5 years, were discovered in Bhoja Distributory by Muhammad Siddique P.
W. 6 in the area of Chak No. 489/GB, Tehsil Summandari. Shirt P. 1 appeared on the dead body of the by and shirt P. 2, chadar P. 3 and dopatta P. 4 appeared on the dead body of the lady. The clothes on the dead bodies of the by and the lady were taken into possession by the police, vide memo. P. G., in the presence of Abdul Ghafoor P. W.
16. Asmatullah Khan S.-I., P. W. 22 Khizer Hayat (not produced). On the basis of this recovery, statement Exh. P. R. Of Muhammad Siddique P. W. 6 was record--ed by Asmtullah Khan S -I., P. W. 22 at 7-15 p.m. Later, on the basis of the said statement, formal F. I. R. Exh. P. H. Of Muhammad Siddique P. W. 6 was recorded by Muhammad Ashraf M. H. C. P. W. 3 at 7.30 p.m, at Police Station, Mamum Kanjan.
8. On 12th July, 1977 at 3 p.m. Dr. Ghulam Rasool P. W. 2 per--formed the post-mortem examination on the dead bodies of the woman and the by and found on their persons one incised wound each on their necks, cutting the necks through and through. The dead body on the by was found in an advanced stage of putrifaction; the skin and hair were absent from the skull ; eye-balls were skruken; teeth were loose superficial skin was detached ; left fore-arm was missing ; and skin with nails over right hand was detached like a glove. The dead body had a light blue kurta. Likewise, the dead body of the woman was in an advanced stage of putrifaction ; head alongwith the portion of the neck was missing ; superficial skin was detached from the body and skin of hands and feet alongwith nails were detached. One chicken kurta of gulabi colour, one chadar with white bands and, light brown colour were found on the dead body. Probable time between injuries and death was immediate and that between death and post-mortem examination about one to two weeks, in respect of both the dead bodies. In cross-examination, the doctor admitted that the two dead bodies could not be identified by anyone.
9. On the same day, i.e. 12th July, 1977 Muhammad Hayat, Umar Hayat and Khizar Hayat accused were arrested by Hamidullah S.-I., P. W. 17.
10. On 13th July, 1977 Khizar Hayat accused led to the recovery of blood-stained earth from near Farida Bungalow, which was taken into possession by ,the, police, vide memo. P. K. Umar Hayat accused on the same day led to the recovery of a blood-stained toka P. 7 from near Farida Bungalow, which .Was taken into possession by the police, vide memo. P. L. Muhammad Hayat accused also led to the recovery of six ear-rings P. 8/1-6, two small ear-rings P 9/1-2, wrapped in a white hand--kerchief P. 10, from near a bush near Farida Bungalow, which was taken into possession by the police, vide memo. P. M. All the said recoveries were witnessed by Khizar Hayat P.
W. 15, Hamidullah S.-I., P. W. 17 and one Khizar Hayat son of Mansabdar (not produced). In view of these recoveries, Hamidullah S.-I. P. W. 17 sent report Exh. P. N. To Police Station Lundianwala, on the basis of which offences under section 302;201/ 34, P. P. C. Were registered against all the three accused.
11. The blood-stained earth and the toka were sent to the Chemical Examiner and the Serologist for examination. The earth was found to be stained with human blood, whereas that on the toka was found to have disintegrated. After completing the necessary investigation, the challan against the accused was sent up.
12. At the trial, all the three accused denied the accusations levelled against them and imputed their case to enmity with the prosecution witnesses. They submitted that Mst. Aisba, the first wife of Abdul Ghafoor P. W. 16, and her four sons had managed to do away with Mst. Jannat Bibi and her three children, as Mst. Jannat Bibi happened to be the second wife of Abdul Ghafoor P. M. 16.
According to them, Abdul Ghafoor P. W. 16, on account of his influence with the police, manu-- f3ctured a false case against them, in order to save his sons from his first wife from criminal liability.
13. The learned trial Judge, relying upon the motive, the evidence of the three accused being last seen with Mst. Jannat Bibi deceased and her three children, the medical testimony and the recoveries, convicted and sentenced the three accused, as stated in para. I above.
14. I have heard the arguments of the learned counsel for the appel--lants and the State and have also perused the record. The. Evidence of motive is furnished by Malazim Hussain P. W. 11 and Abdul Ghafoor F'. W.
16. According to Malazim Hussain P. W. 11, in June, 1977 he visited Chak No. 85,/S. B.
With Khizar Hayat appellant to solve a water dispute which.Khizar Hayat appellant had with his cousin Raja Khan. He intervened in that dispute. At that time, Raja Khan taunted that if Khizar Hayat and Umar Hayat appellants had been brave, they would have taken revenge from the abductor of their sister, who was a Baloch by caste. According to his testimony, all three appellants were present at their dera at that time with him. Khizar Hayat appellant thereupon replied that they would fight with the Baloch in order to vindicate their family honour. According to Mulazim Hussain P. W.
11. He told them that their sister Mst. Jannat Khatoon deceased had already given birth to three children and that they should desist from taking any action against the Baloch, but they refused to accede to his request. In cross-examina--tion, Malazim Hussain P. W. 11 admitted that he lived at a distance of twenty-seven miles from Chak No. 85 /S. B., where he went and where the appellants lived. He stated that ha was married in Awan family of village Dharema and that Atta Muhammad was his father-in-law. He denied that the real brother of Abdul Ghafoor P. W, 16 was married to his wife's sister. He further admitted that he did not tell Abdul Ghafoor P. W. Id that the appellants were out to: take revenge for the abduction of their sister, Mst. Jannat Bibi, and that he should be on guard and that till he made the statement Exh. D. A. Before the police in the case he did not narrate this incident to anyone. He admitted that he never appeared before the police of District Lyallpur and that in his statement Exh. D. A. He had not mentioned that Khizar Hayat appellant had asserted that they should vindicate their family honour by fighting with Baloch or that he had entreated the appellants to desist from taking action against the Baloch, because their sister Mst. Jannat had already given birth to three children, which request they refused to accept.
Abdul Ghafoor P. W. 16 in his evidence submitted that about 12/13 years prior to his giving evidence in the case, he married Mst. Jannat Bibi deceased in pursuance of his illicit intimacy with her, on which account the appellants were unhappy with tier. In the first instance, Malazim Hussain P. W. 11 has given the name of his father as Munir Hussain. However, his parentage in the police challan and police statement Exh. D. A. Are shown as Murid Hussain. At the trial, Malazim Hussain P. W. 11 denied that the brother of Abdul Ghafoor P. W. 16 was married to his wife's sister and submitted that the name of his father-in-law was Atta Muhammad. However, Abdul Ghafoor P. W. 16 admitted in his further cross-examination on 18th December, 1979 that his brother Nazar Muhammad was married to Mst. Asmat Bibi daughter of Haji Dost Muhammad resident of Chak Dharema that Malazim Hussain P. W. I I was the son of Murid Hussain Shah, a resident of village Hussain Shah ; that he had gone through Nikahnama'Exh. D. F. Shown to him and that the same pertained to the marriage of Malazirn Hussain P. W. 11 with Mst. Manzoor Fatima, daughter of Dost Muhammad Baloch, resident of Chak No. 3, Rakh Dharema ; and that Exh. P. F. Was the 'Nikahnama of his brother Nazar Muhammad, which was correct. The witnesses-of Mst. Ismat Bibi in Nikahnama Exh. D. F.II are, Baloch by caste. Therefore, it appears that Malazim Hussain P. W. I1 is actually the son of Murid Hussain Shah and that he was married to Mst. Manzoor Fatima, daughter of Dost Muhammad Baloch of Chak No. 3 Rakh Dharema and that Mst. Asmat Bibi is also the daughter of the said Dost Muhammad Baloch. But even assuming, for a matter of argument, that Mst. Asmgt Bibi and Mst.
Manzoor Fatima are not the daughters of the same Dost Muhammad Baloch, the evidence of Malazim Hussain P. W. 11 does not appear to be of a reliable witness. Even otherwise, his statement is full of contradictions. At the trial, he stated that when he gave the statement Exh. D. A. To the police, only three constables were present, but Hamid ulah S.-I., P. W. 17 submits that there were other witnesses also present. Apart from the fact that this witness does not appear to be reliable, the motive, as set forth, does not appear to ring true. If the appellants had wanted to take revenge for the abduction of their sister by a Baloch, they did not have to watt for 10/11 years. Even assuming that the motive, as set forth, is admitted, the appellants had asserted that they would take revenge from the Baloch, but Abdul Ghafoor P. W. 16 was not done to death nor any attempt was made in that direction. It is inconceivable that the appellants would have wanted to murder their sister and her three children to avenge her abduction at the hands of a Baloch after almost 10/ 11 years after the incident. For all these reasons, the motive, as set forth by the prosecution, is neither proved nor rings true. It cannot therefore, be said that the appellants had a motive to kill Mst. Jannat Bibi or her three children.
15. The evidence of Mst. Jannat Bibi deceased with her three deceased children being last seen with the three appellants at three different epochs of time 4th, 1977 is furnished by Sikandar Khan P.
W.
12. Abdul Ghafoor P. W. 6, Sardar Muhammad P. W. 13 and Muhammad Sharif P. W.
14. According to Sikandar Khan P. W. 12 and Abdul Ghafoor P. W. 16, Muhammad Hayat appellant called at the house of Abdul Ghafoor P. W. 16 on 4th July. 1977 at 10/11 a. m. When Lal (given up P. W.) was also present. Muhammad Hayat appellant asked Abdul Ghafoor P. W. 16 that as his mother, who was living with her parents, was not willing to come back he should send Mst. Jannat Bibi with him, because she would be able to prevail upon his mother to return back. At first Abdul Ghafoor P. W. 16 did not agree to the appellant's request, but on his statement that he would send Mst. Jannat Bibi deceased back on the next day, Abdul Ghafoor P. W. 16 acceded to his request. Accordingly, Mst.
Jannat Bibi deceased with her three minor children namely Ghulam Abbas, Mst. Qaisara Bibi and Ilyas left with Muhammad Hayat appellant at about 11/12 noon. Mst. Jannat Bibi deceased was wearing a pink shirt of chicken. She also had a chadar with square-shaped colour pattern on it (dabbidar cheena) and doppata of white colour. She was also having a burqa of jaman colour and wearing two nasbies of gold. She was also wearing khussa on her feet. Mst. Qaisara Bibi deceased was wearing six ear-rings of gold and had white shalwar and shirt with blue flowers and havai chappal on her feet. Ghulam Abbas and Muhammad Ilyas deceased were wearing clothes of light blue colour and the former had blue coloured sandal and the latter chappel on his feet. Both Sikandar Khan P. W. 12 and Abdul Ghafoor P. W. 16 happan to be the brother-in-law and husband of the deceased. Both reside in the same house. They are, there--fore, natural witnesses. The report Exh. P. Y. Of Abdul Ghafoor P. W. If lodged with the S. H. O. Police Station Khoshab on 7th July, 1977 also confirms the said testimony. The said report Exh P. Y. Was produced at the trial by Ahmad Shah M. H. C. P. W. 18 and proved by Abdul Ghafoor P. W. 16 himself after he was recalled on 18th December, 1979. The original daily diary of Police Station Khoshab has also been inspected by me, which shows that report Exh. P. Y. Was so lodged and recorded in the said daily diary on 7th July, 1977. Notwithstanding a lengthy cross-examination, nothing has been brought out to show that the testi--mony of Sikandar P. W. 12 or Abdul Ghafoor P. W. 16 is untrue or suffers from such contradiction . As cannot be safely accepted. Abdul Ghafoor s report Exh. P. Y. Does not refer to any murder, but to his suspicion that Muhammad Hayat appellant had enticed away his wife and three children with the object of abduction. It cannot, therefore, be denied that the evidence of these witnesses is reliable and can be accepted without reservation.
16. The evidence as regards Mst. Jannat Bibi deceased and her three deceased children being last seen with the three appellants one day before the imposition of Martial Law in 1977 is furnished by Sardar Muhammad P. W. 13, who saw them all standing at the bus stand at Sargodha. He bad returned from village Dodha, which was the village of his sister, and when he alighted from the bus, he met the appel--lants and the four deceased at the bus stand. At that time, Muhammad Nawaz (not produced), was also present at the bus stand. He asked the appellants as to where they were going and they replied that they were going to Lyallpur. Sardar Muhammad P. W. 13 resides in the same village as the deceased and Abdul Ghafoor P. W. But is not related to them. From his cross- examination, it appears that he knew the com--plainant party as well as the appellants. However, nothing appears from his cross-examination to suggest that he did not see the appellants with the four deceased one day before the imposition of Martial Law in 1977 or that his evidence suffers from such contradiction, that the same cannot be accepted other than with some reservation. The evidence of Sardar Muhammad P. W. 13 is reliable and convincing and proves that on 6th July. 1977 at about peshiwela the four deceased persons were last seen with the three appellants at bus stand at Sargodha.
17. Muhammad Sharif P. W. 14 is the sole witness who has been produced to show that Mst. Jannat Btbi deceased and her three children were last seen with the appellants on 4th July, 1977 at about degerwela at Canal Bridge, near Farida Bungalow in Tehsil Jaranwala. According to the testimony of this witness, about two years and three four month prior to his evidence at the trial, he with Nazar Muhammad (not produced) was present at degerwala on the Canal Bridge situated near Bungalow Farida in Tehsil Jaranwala waiting for a bus. They saw the four deceased accompanied by the three appellants alighting from a bus coming from Jaranwala. Since he knew all the deceased and the appellants, he recog--nised and met them. They then left towards Bungalow Farida. At that time. Umar Hayat appellant was carrying a gunny bag with him. Muhammad Sharif P. W 14 resides at Mouza Kalyar in the area of Police Station Noshera, Tehsil Khoshab, District Sargodha which is fifty miles from Sargodha. In cross-examination he stated that at the relevant time he had come to Jhok Shadoke where he had gone in connection with his cattle business, but admitted that he had not given this fact in his police statement Exh. DD. When questioned about his intimacy with the appellants, he stated in cross-examination that he knew Khizar Hayat appellant, because he was friendly with him and had seen him at the bank where he used to go and where the said appellant was a police guard, that he knew Umar Hayat appellant, as he was a cleaner of a Bundial Bus, and that he knew Muhammad Hayat appellant, as he lived in Khair Pur village, where his friend Nazar Muhammad was also living. Muhammad Sharif P. W. 14 appears to be an independent witness and nothing has been brought out in cross-examination to show that he has any enmity with any of the appellants or is otherwise a stock witness of the police. Muhammad Sharif P. W. 14 apparently is known to the parties. His evidence is, therefore, convincing and reliable and proves the presence of the four deceased with the three appellants at the Canal Bridge near Farida Bungalow to Tehsil Jaranwala on 4th July, 1977 at degerwela (about 5j6 p. m.).
18. The aforesaid testimony with regard to the four deceased being last seen with the appellants on 4th July, 1977 can only be treated as of an incriminatory nature if it can be shown that the four deceased were done to death within a close margin of time from their being so last seen, so that the said circumstance, with other circumstances of an incriminatory nature that may be present a reasonable presumption can be drawn that only the appellants and none else could have committed their murder; a presumption, so strong, that unless the appellants can satisfactorily explain the further absence or whereabouts of the four deceased a Court of law would be acting correctly in presuming that they were murdered by the appellants and none else. In this connection it is, therefore, necessary to find out whether the four dead bodies recovered in the instant case are those of the wife and children of Abdul Ghafoor P. W. 16 and, if so, when and at what time they suffered death. The recovery of two dead bodies, one of a by aged 11/12 years and the other of a girl aged 8/9 years, from Tandlianwala Distributory on 7th July, 1977 at 12 noon cannot be disputed. The evidence of Muhammad P. W. 10 and Sanallah P. W. 19 in this connection is clear and convincing. Of course Muhammad P. W. 10 has submitted that he could not say as to whose dead bodies they were or whether they were of adults or of children, but the testimony of Sanaullah S.-I., P. W. 19 is clear that they were of a by and a girl. This fact is also corroborated by Dr. Ahmad Saeed P. W.
1. Who conduc--ted the post-mortem examination on the said two dead bodies at 6- 30 p. m, on 7th July, 1977. According to F. I. R. Exh. P. O. Of Khadim Hussain (not produced) and the testimony of Sanaullah S.-1., P. W. 19, it appears that the dead body of the by had a shalwar. P. 6 on it and the dead body of the girl had a kurta P. 5 on it, which were recovered vide memos. Exhs. P. F.
And P. E. Respectively. The memo P. F. Shows that shalwar P. 6 was of Trivera cloth of light blue colour and the memo. Exh. P. E. Shows that the shirt P. 5 was of white viol cloth with yellow and blue "Simble" flowers. The report Exh. P. Y. Lodged earlier by Abdul Ghafoor P. W. 16 at Police Station Khoshab on 7th July, 1977 Shows that Ghulam Abbas deceased had a Trivera shalwar and kurta suit which was of light blue colour and that his daughter Mst. Qaisara had a Shamama suit with flower design and pink dopatta of net. According to the testi--mony of Dr. Ahmad Saeed P. W. 1, both the dead bodies were swollen and decomposed and the dead body of the by was clad in a white cotton shalwar and that of the girl in Tetron shirt having colour prints. The testimony of Sana Ullah S.-I., P. W. 19 shows that the two dead bodies were kept at Police Station Tandlianwala till 9th July 1977 when they were identified by Sikandar Khan P. W. 12, Abdul Ghafoor P. W. 16 and Ghulam Sarwar (not produced). The identification of the said two dead bodies by Sikandar Khan P. W. 12 and Abdul Ghafoor `P. W. 16 and Ghulam Sarwar (not produced) at Police Station Tandlianwala on 9th July, 1977 appears to be doubtful, as Hamidullah S. L, P. W. 17 has clearly stated in cross-examination that Sikandar Khan P. W. 12 and Abdul Ghafoor P. W. 16 were with him on 9th July, 1977 from 7-30 a.m. To 11-50 p. m. At Sargodha and that his case diary did not mention that two dead bodies were recovered that day in the area of Police Station Tandlian--wala and identified by these two witnesses, Sikandar P. W. 12 and Abdul Ghafoor P. W. 16 have not satisfactorily explained how they came to learn of the recovery of the two dead bodies on 7th July, 1977 in the area of Tandlianwala or what information brought them so many miles away from their residence to Tandlianwala. It, therefore, appears that the statements of Sikandar Khan P. W. 12, Abdul Ghafoor P. W. 16, and Muhammad Sanaullah S.-I. P. W. 19 that the former two identified the two dead bodies on 9th July, 1977 at Police Station Tandlianwala appear to be untrue. The description of the clothes last worn by Ghulam Abbas and Qaisera deceased as stated in report Exh. P. Y. And that given by Dr. Ahmad Saved P. W. 1 at the trial, that as recorded by the police in their recovery memos, P. F. And P.E. And that as submitted by Sikandar P. W. 12 and Abdul Ghafoor P. W. 16 at their trial, do not tally. Sikandar P. W. 12, in his statement Exh. D. B. To the police did not. Give the description of the clothes, the evidence of identification of the two dead bodies appears to be fabricated at the instance of Muhammad Sanaullah S. I., P. W. 19 to show that the same were that of Ghulam Abbas and Mst.
Qaisara deceased. Even otherwise, it appears strange that the two dead bodies, alleged to be of Ghulam Abbas and Mst. Qaisara Bibi deceased, were not photographed by the police for identification and were not kept in the hospital, or morgue after post-mortem examination from 7th July. 1977 onwards, but retained at the Police Station Tandlianwala upto 9th July, 1977, till their identifica--tion by Sikandar Khan P. W. 12 and Abdul Ghafoor P. W.
16. The fact that the appellants were not arrested on 9th July 1977 or the day there after, shows that the two dead bodies were possibly not identified on 9th July, 1977. The prosecution evidence does not therefore, clearly and unequivocally establish that the two dead bodies recovered on 7th July, 1977 were identified to be that of Ghulam Abbas and Mst. Qaisara deceased.
19. As regards the recovery of the two dead bodies, one of a lady aged 32/35 years and the other of a by aged 4/5 years, from Bhoja Distributory in the area of Tehsil Sumandari on 11th July, 1977 at 5 p.m. There is the testimony of Muhammad Siddique P: W. 6 and Asmatullah S.I. P. W.
22. Muhammad Siddique P. W. 6 in his evidence disowned seeing the said two dead bodies which were recovered from the canal or having read his report Exh. P. H. Before he signed it, though he admitted having signed the same, but the evidence of Asmatullah S.-I., P. W. 22 is clear and convincing to show that two dead bodies were recovered from Bhoja Distributory. These dead bodies were identified by Abdul Ghafoor P. W. 16 on 12th July, 1977, on the basis of the clothes which were last found on the two dead bodies. The evidence as regards the recoveries of the two dead bodies is natural and convincing. Then cannot be any doubt about that. As stated by Dr. Ghulam Rasool P. W. 2 in cross- examination, the two dead bodies could not be identified by anyone. This is obvious from the fact that both of the dead bodies were in an advanced stage of purification, as superficial skin was detached, skin of hands was detached like a glove and the head alongwith a portion of the neck of the body of the woman was missing. In short, the two dead bodies as such were in an unidentifiable state. The evidence of identity is only furnished on the basis of the clothes last worn by the deceased and found on the two dead bodies at the time of their recovery. The recovery memo. Exh. P. G. Of shirt P. I purporting to be on the dead body of the young by shows it is of light blue colour, which is confirmed by Dr. Ghulam Rasool P. W. 2 who found a light blue colour kurra on the dead body of the by. Abdul Ghafoor P. W. 16 in his first report Exh. P. Y. Referred to the fact that Muhammad Ilyas deceased when he left with his mother had a light blue Trivera shirt on his person, which fact he also confirms in his evidence. The memo. Exh. P. G. Of the recoveries of the shirt P. 2, chadar P.
3. And doppata P. 4, show that the shirt was pink coloured with white flowers and of chicken cloth, that the chadar P. 3 had red and white square shaped block prints and the dopatta P. 4 was of white malmal cloth. Dr. Ghulam Rasool P. W. 2 in his evidence stated that the dead body of the lady was clad in a pink coloured kurta of chiken cloth, one chadar with white and light brown bands and another chadar (description not given). Abdul Ghafoor P. W. 16 in his earlier report Exh. P. Y. Mentioned that his wife Mst. Jannat Bibi deceased, at the time she left, had a pink colour chicken shirt, a cotton chadar with colour print and a green dopatta. At the trial he stated that she had worn a pink colour shirt, a chadar with square shaped colour prints and a white dopatta. Apart from the evidence of Abdul Ghaioor P. W. 16, there is no further confirma--tory evidence from any other witness to state that Mst. Jannat Bibi and Muhammad Ilyas deceased at the time of their departure wore the clothes of the description as stated by Abdul Ghafoor P. W. 16 and as recovered by the police at the time of the recovery of the two dead bodies. The clothes are of a general pattern. The tailor who stitched them has not been produced to identify them. The sole testimony of Abdul Ghafoor P. W. 16 cannot be accepted, other than with reservation. The two dead bodies were recovered from Bhoja Distri--butory, which is not connected with Tandlianwala Distributory from where the earlier two dead bodies were recovered. The two distributories are some miles apart. Taking all circumstances into consideration, the evidence is not clear and convincing to show without a shadow of doubt that the two dead bodies of a lady and a young by recovered on 11th July, 1977 from Bhoja Distributory are undeniably that of Mst. Jannat Bibi and Ilyas deceased.
20. The evidence as regards the recovery of blood-stained earth at the instance of Khizar Hayat appellant, blood-stained toka P. 7 at the instance of Umar Hayat appellant and six ear-rings P. 8/1- 6, and two small ear-rings P. 9/1-2 wrapped in a white handkerchief P. 10 (bearing the name of Muhammad Hayat appellant), on 13th July, 197 7 from three different places at some distance from Farida Bungalow, is furnished by Khizar Hayat P. W. 15, Hamidullah P. W. 17 and Khizar Hayat son of Mansabdar (not produced), in the first instance, in the earliest report Exh. P. Y. Lodged by Abdul Ghafoor P, W. 16 at Police Station Khoshab, on 7th July, 1977, he referred to the fact that his wife Mst.
Jinnat Bibi had worn gold ear-rings and that his daughter Qaisara had worn three ear-rings each on each of her ear at the time when they left his house. However, at the trial Abdul Ghafoor P. W. 16 remained silent about the said ear-rings having been worn by his wife and his daughter. The three different types of re--coveries effected on 13th July, 1977 by the police from Khizar Hayat, Umar Hayat and Muhammad Hayat appellants do not inspire confidence for more than many reasons. In the first instance no respectable person from the locality was taken by the police to witness the recoveries, though as admitted by Muhammad Saeed Patwari P. W. 20 in cross---examination, the Bungalow was inhabited by many persons including an Overseer and there was a Civil Dispensary there also. It appears that Khizar Hayat P. W. 15 was brought all the way from his village to Sargodha and thence to the place of recovery, more than thirty to forty miles away, in a car by the police to witness the recovery. He admitted in cross-examination that he may have given evidence in one or two cases, but denied that be was a stock witness of the police and had given false evidence, He also admitted that ear-rings were of a common pattern. The manner in which the recoveries have been effected appears to be unnatural. Each of the three appellants, one after the other, was led to a particular recovery. It seems doubtful that blood-stained earth which was lying open could have retained its character for identification, almost nine days after its recovery in the hot summer month of July or after another twenty-four days after its recovery, when it was finally examined by the Chemical Examiner in the first week of August. As against this, the blood on the toka P. 7 had disintegrated, with the result that no final opinion could be given by the Serologist. For all these reasons, the recoveries effected from the three appellants on 13 July. 1977 do not inspire confidence. They appear to be planted. The evi--dence as regards these recoveries cannot, therefore, be accepted with impli--cit confidence.
21. The upshot of the above discussion is that neither the motive nor the identity of the four dead bodies nor the recoveries stand fully proved. In these circumstances, the appellants cannot be saddled with the liability for the murders of Mst. Jannat Bibi deceased and her three deceased children. The evidence of the four deceased being last seen with the three appellants on 4th July, 1977, by itself, does not prove the prosecution case. The prosecution has not been able to prove its case to the hilt against the appellants and they are entitled to the benefit of doubt.
22. For the foregoing reasons, this appeal is accepted and the conviction and sentences of the three appellants are hereby set aside. The appel--lants shall be released forthwith if not required in any other case. Fine, if any recovered from them, shall be refunded to them.