SHAUKAT HAYAT and another vs THE STATE

1. ' ALLAHDINO G. MEMON, J.--- The appellants were charged and tried under sections 10 (3) and 11 of Zina (Enforcement of Hudood) Ordinance, 1979, and under section 302/34 P.P.C. Before the learned Chairman, Special Court, Speedy Trials, Karachi, who has convicted and sentenced them as follows:-

(1) Under section 302/34 P.P.C.

2. The appellants have been sentenced to death and line of Rs,1,00,000 each, in default they have to undergo R.I. For five years.

(2) Under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979; read with section 34, P.P.C.

3. Imprisonment for life and fine of Rs,50,000 each and 30 stripes.

(3) Under section 11 of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C.

4. ' Imprisonment for life and fine of Rs,50,000 each, in default they were to suffer further R.I. For three years.

5. ' The appellants have been further ordered to pay Rs,1,00,000 each as compensation under section 544-A Cr.P.C. To the heirs of three deceased vide judgment dated 17-10-1986.

6. ' The brief facts of the prosecution case are that on 9-1-1987, one Afaq-urRahman son of Mohammad Masoom Ali lodged report at 00.15 a.m. At police station New Karachi, inter alia alleging therein that:- "I live with my parents. I am employed as clerk in Muslim Commercial Bank. Today, on 8-1-1987, at 6-00 p.m. My father alongwith my sisters Azra aged 30 years Asma aged 24 years and Salma Jabeen aged 19 years went to the House No, B-695, Block 13, Gulberg, Karachi, to attend the marriage ceremony of my cousin Mr. Salim Raza. Barat was to arrive in Al-Imram Palace, Sakhi Hasan at 11-00/11-15 p.m. While I was watching Television, suddenly a gunshot report was heard in the street alongwith women cries/women shrieks. I came out and the people of mohallah also came in the street. We were just having discussion over the gunshot report and the cries, when my neighbor Roshan informed us that the dead body of my father was lying on the road.

7. ' We went there and found that the dead body of my father was lying along the roadside bus stop Gulshan-e-Usman. Syed Sibte Hassan Naqvi, Ata Mohammad Chowkidar, Mushtaq and other persons informed me that a white colour Charade car speedily took a turn in the street of my house, went towards bus stop Gulshan-e-Usman No,2 and all of a sudden an unknown person sitting in the car threw away my father. The car then went away speedily, in which they also heard cries "save" "save". Thereafter I contacted my relations at Gulberg on telephone and I was informed that my younger sisters Asma and Salma Jabeen had left the marriage hall for home alongwith my father at 10.00/10.30 p.m. My father died on the spot and some unknown person has kidnapped my two sisters with intention to murder them. I state, that an unknown person with the intention to murder my father threw him from white colour Charade car and has kidnapped my two sisters with intention to murder them. My sister Asma is aged 24 years, fair complexion with spectacles and Shalwar, Kamiz and sandals. While Salma Jabeen was 18 years of age, height 3-1/2 feet and had spectacles, Shalwar, and Kamiz. She had smallpox on her face."

8. ' The above First Information Report was recorded by Station House Officer Maqbool Asif Bajwa, P.W.

9. 27, at Police Station New Karachi. The F.I.R. Has been produced as Exh.7-A. After recording the F.I.R. In daily diary he accompanied the complainant and P.W. Asif Mehmood and went to the place where the dead body of Masoom Ali was lying. He prepared the Mashirnama of dead body in presence of Syed Asif Mehmood and Saiful Islam, the Mashirnama of dead body has been produced as Exh.18, and thereafter referred the dead body to Abbasi Shaheed Hospital for post-mortem examination.

10. He then prepared Mashirnama of wardat in presence of Syed Asif Mehmood and Saiful Islam, which has been produced as Exh.

52. While inspecting place of wardat, S.H.O. Secured blood-stained earth, cap and mufler of the deceased. He had sent the statement of Afaq-ur-Rahman which he had recorded in the Station Diary for registration of the case. After registration of the case, he received the copy of F.I.R. At the place where the dead body was lying. He then recorded the statement of the family members of the deceased at their house. He also examined P.Ws. At that place. He has produced the 154 Cr.P.C.

11. Book containing the F.I.R. Recorded at police station as Exh.80. He then deputed various parties for arrest of the culprits. On 11-1-1987, one Ghulam Mohammad Soomro found the dead bodies of two girls lying naked in the bushes near Chaukundi graveyard and, therefore, he went to the outpost, Bhains Colony, and informed the In charge accordingly. The In charge made such entry in the Roznamcha maintained at the police post and went to the place where the dead bodies were lying. He completed 174 Cr.P.C. Proceedings, prepared inquest reports, secured and sealed the pieces of bangles, white spectacles and blood-stained earth etc. From near the dead bodies. While the incharge was conducting inquest etc. Many people had collected at that place and he came to know through a person available there about the names of deceased girls Salma and Asma. After compliance of necessary formalities, the dead bodies were referred to the hospital for postmortem examination. At 4.00 p.m. Inspector Maqbool Asif Bajwa received a wireless message regarding the discovery of the dead bodies of two victims. He left for that place but on the way he received another wireless message that the dead bodies have been referred to Jinnah Hospital and, therefore, he went to Jinnah Hospital and found the two dead bodies lying in mortuary. The dead bodies were identified by Junaid-Rahman brother of the deceased girls. The Medical Officer after post-mortem examination handed over the dead bodies of two girls to Junaid Rahman while sealed packets were handed over to him. On 15-1-1987, S.H.O. Maqool Asif Bajwa took search of an open room situated near the Chaukundi Graveyard due to suspicion. He recovered a pillow near the door of that room and the same appeared to have been blood stained. There was a cot inside the room on which Chader/Sindhi rilli was lying having some semen marks thereon. Outside the room there was some space surrounded by bushes. The ground of that space which was katcha, was having spots which he suspected to be blood-spots. By the side of the cot, inside the rooms three photographs of different size and a certificate pertaining to All Goher was also found by him.

12. He sealed the articles except the photographs and certificate and prepared such Mashirnama in presence of Younus and Chacher. Mashirnama has been produced as Exh.82. Photographs and certificate have been produced as Exh.82, 82-A to Exh.82-C. He then examined Chacher and Younus. He also found marks of tyres of a car on the ground, outside the said room near Chaukhundi graveyard. He directed the Foot Print Expert that he had to take moulds of the tyres from that place on 16-1-1987. While he was busy with the investigation of this case, Malik Mohammad Hussain of P.P. Bhains Colony had sent sealed articles to him on 21-1-1987, which he had secured in connection with this case. On 30-1-1987, the Investigation of this case was transferred to C.I.A. And. Therefore, he handed over the relevant case papers to the C.I.A. After obtaining necessary sanction from concerned authority, he had sent all the articles, secured in connection with the above case and sealed by various authorities at Abbasi Shaheed Hospital, and Jinnah Hospital at P.P. Quaidabad, and by him, to Chemical Examiner. On 9-2-1987, the articles were received by Chemical Examiner. The photo copy of the forwarding letter has been produced as Exh.82. The letter which he had written to the D.S.P. For sanction, has been produced as Exh.83.

13. Since the police was not able to get any clue, regarding the culprits, the S.S.P. C.I.A. Karachi, associated Inspector Mohammad Khan with the investigation of the above case. On receipt of directions/instructions, from S.S.P., Inspector Mohammad Khan informed all police stations of Karachi about the incident of this case with the directions that if identical case of abduction/murder was registered any where, he may he informed accordingly. In consequence.

14. Thereof Mohammad Khan was informed about the identical case registered as F.I.R. No,458 of 1986, at New Town Police Station, Karachi. Therefter the investigation of Crime No,458 of 1986 was transferred to Inspector Mohammad Khan. The above F.I.R. Contained the description of the culprits and, as such, Inspector Mohammad Khan called Sub-inspector Shaukat Hayat (appellant) at the C.I.A. Centre. On 31-1-1987, Sub-Inspector Shaukat Hayat came to C.I.A. Centre in his white Charade car, bearing registration No,223-035. Suspecting Sub-Inspector Shaukat Hayat to be the accused of Crime No, 458 of 1986, Inspector Mohammad Khan arrested him and secured car also under Mashirnama in presence of Mashirs Mohammad Sharif and Anis, the Mashirnama has been produced as Exh.11. In the meanwhile, Afaq Rchman having come to know through Press and local police about the association of C.I.A. With investigation of this case had reached the C.I.A. Centre alongwith Mohammad Sharif and Anis before the appellant Shaukat Hayat appeared there. On seeing- the said white Charade car of appellant Shaukat Hayat, complainant Afaq Rahman requested Inspector Mohammad Khan that car be searched. Therefore, Inspector Mohammad Khan took search of the same. During search, seat covers, under-lay and mats available inside the car were found stained with blood. In addition there to, he found two holes through and through; one in the roof of the car, and other on the back of the seat of the said car. The hole in the roof appeared to have been filled with lap He also secured broken pieces of bangles, one black `moti' and pieces of glass of spectacles and sealed the same in a parcel. He also secured under-lay, mat, and scat covers, and sealed the same in another parcel. From the dash board of the car, he secured National Identity Card of accused Shaukat Hayat, his police identity card and curfew pass containing the number of his car, issued in his name by the D.M.L.A. Badin, and his name plate alongwith two keys out of which one was magnet key. He prepared such Mashirnama. Thereafter Inspector Mohammad Khan informed his superiors regarding recovery of the above articles from the said car and the arrest of the accused on 3-2-1987. The investigation of this case was entrusted to Inspector Mohammad Khan officially through a letter which he has produced as Exh.

143. During interrogation accused Shaukat Hayat .Led the police party to the bushes near Mehran Petrol Pump on National Highway on 8-2-1987, and produced bloodstained clothes and pair of sandals from the bushes and produced the same before Inspector Mohammad Khan and Mashirs which were secured and scaled under Mashirnama which has been produced as Exh.

15. On the same date accused Shaukat Hayat voluntarily led the police party to his flat situated in Regency Apartments, Gulshan-e-Iqbal, Block IV, Karachi, from where he produced a pistol bearing No, 812005, made in Spain, along with a black holster and six live bullets which were secured in presence of Mashirs Rustam Ali and Zafar Khan under Mashirnama, and the same has been produced as Exh.16. On 8-2-1987, Inspector Mohammad Khan produced sealed parcel containing incriminating articles Exh, 'S' to 'S-10', bangle pieces Article 'K', black moti Article 'L', and eyeglass pieces Article P' for identification test before Mr. Abdul Ghafoor Memon A.C.M. XI, through P.Ws. Afaq Rahman, Azra and Jamila. On the same day, he requested Finger Prints Bureau to obtain specimen moulds of tyre marks of the car, secured from the accused. The latter has been produced as Exh.97.

15. On 8-2-1987, he arrested accused Shaukat Hayat in the present case being Crime No, 22/1987. He then sent article 'A' to Ballistic Expert and had also requested for expert opinion regarding holes available on the roof and the back rear scat of Article 'IV (car secured from accused Shaukat Hayat). The letter has been produced as Exh.

98. On 11-2-1987, he had also sent crime bullet alleged to have been recovered from the brain of deceased Salma during post-mortem to A.I.-G. Criminalistic Division, Karachi, for opinion whether the same was fired from the pistol secured from accused Shaukat Hayat. He had also sent blood stained articles to the chemical examiner for examination and report on 9-2-1987. On 24-2-1987, he sent black moti, pieces of bangles and three pieces of eyeglass to forensic expert for examination and report regarding character and make of the material. On 10-3-1987, he sent bangles pieces which were secured from the vicinity of Chaukundi graveyard to A.I.-G. Criminalistic Division. On 22- 2-1987, co-accused Nawaz Tanoli was arrested in connection with Crime No,458 of 1986, registered at Police Station New Town. He interrogated him. On 4-3-1987, Ghulam Mohammad brother of accused Nawaz Tanoli produced a licensed revolver of accused Tanoli before Inspector Mohammad Khan, which was secured under Mashirnama which has been produced as Exh.

93. Plastic available at the butt of the revolver was broken near the eye of the butt. He had secured revolver licence under separate Mashirnama which has been produced as Exh.49. On 9-2-1987, he secured record from Appolo Service Station, where the car (Article 'R') is said to have been serviced on 9-1-1987, the record has been produced as Exh.26. Since accused Shaukat Hayat was under training, at Police Training School, Shandadur, he secured the record of his movements from the Training School Shandadpur and the same has been produced as Exh.35. He had sent revolver of accused Nawaz Tanoli for examination to the Criminalistic Division for examination and report. He arrested accused Nawaz Tanoli on 7-31987, After receipt of chemical examiner's report, the report has been produced as Exh.

146. He had referred both the accused to Medical Officer for examination and report regarding their sexual potency. The slides so taken by the Medical Officer were sent to Chemical Examiner, and the report has been produced as Exh.

147. On completion of investigation the accused/appellants were challaned before the Court on 30-4-1987. Later on the case was transfered to the Chairman/Judge Special Court for Speedy Trials, Karachi.

16. ' A formal charge was framed against the appellants to which they pleaded not guilty.

17. ' At the trial prosecution examined complainant Mohammad Afaq Rahman son of deceased Mohammad Masoom Ali Shah, P.W.1, he has produced his statement, recorded under section 154 Cr.P.C. As Exh. 7-A, Mohammad Sharif, P.W. 2, he has produced Mashirnama of arrest of appellant Shaukat Hayat as Exh.11, Mashirnama of search of his car and consequent recovery of bloodstained pads, seat covers, pieces of bangles and optical, black Moti, Curfew Pass in the name of the appellant, issued by D.M.L.A. Badin, his national identity card, police identity card, issued by S.P.

18. Badin, name plate of accused and key chain with two pieces. Mashir Rustam Ali P.W.3, he has produced Mashirnama of production of blood stained two black Chaders, ladies clothes and a pair of ladies sandals, etc. As Exh.50, production of pistol with six lives bullets by appellant Shaukat Hayat from his Flat situated in Gulshan-e-Iqbal as Exh.

16. Saiful Islam P.W.4. He used to reside near the place where the dead body of Mohammad Masoom Ali was thrown out of the car and had come out of his house hearing gunshot report. He had shown the place of incident to Inspector Maqbool Asif Bajwa who prepared such Mashirnama in his presence and that of Asif Mehmood and the same has been produced as Exh.18.

19. Complainant Afaq Rahman has produced eyesight cards of his sisters before C.I.A. Which were secured in his presence and such Mashirnama was prepared in his presence. The Mashirnama has been produced as Exh.

19. Mohammad Salim, an employee of Appollo Service Station, P.W. 5, he had carried out service of white Charade car belonging to appellant Shaukat Hayat on 9-1-1987 Syed Abdur Rahman Manager, Apollo Service Station, P.W. 6, he has produced cash-memo/bill in respect of service of Charade car belonging to appellant Shaukat Hayat as Exh. 26 and Mashirnama of recovery of cash memo./bill as Exh.27. Mohammad Khan Bread (Roti) and Kabab Seller, Guru Mandir Karachi, P.W. 7 (he has not supported the prosecution and was, therefore, declared hostile and cross-examined)

20. Mumtaz. Hussain, Head Constable, P.W. 8, he has produced register No, 16, pertaining to Police Station Clifton as Exh.31. Sultan Wali Khan, Sub-Inspector Police Training Centre, Shandadpur, P.W. 9, he has produced Roznamcha, containing entries dated 8-1-1987, 9-1-1987 and 10-1-1987, regarding absence of appellant Shaukat Hayat as Exh.33 to Exh. 35, Mr. Abdul Ghaffar A.C.M. No,II, North Karachi, P.W. 10, he had held identification test of clothes of two girls, broken pieces of bangles and other articles through complainant Afaq Rahman, P.Ws. Mst. Jamila and Mst. Azra. The Mashirnamas have been produced as Exhs. 37 and 38. Mst. Jamila Khatoon daughter of deceased Mohammad Masoom Ali P.W.11, she had identified the articles in identification test held by Mr. Abdul Ghafoor, A.C.M. Rashid Ahmed, the then Muharrir, Police Station Clifton, P.W.12, he had deposed about the entry Exh.31, dated 13-2-1985, regarding joining duty by Sub- Inspector Shaukat Hayat, Zahoor Ahmed Kabab-seller, Guru Mandir, Karachi. P.W. 13 (he has not supported the prosecution and, as such, was declared hostile and cross-examined), Mohammad Tariq Ali Salesman, Shaheen Motors, Karachi. P.W. 14, he had sold white Charade car to appellant Shaukat Hayat in the year 1986 and that Shaukat Hayat got the number plate fitted on the said car a year thereafter. He had produced the number plate which he had removed from the said car at the time of fixing the new plate and has also produced the delivery acceptance memo. As Exh.43. The police had secured the same under Mashirnama which he has produced as Exh.

44. He has also acted as Mashir regarding production of delivery order hook before the police by Mujahid Hussain and the Mashirnama has been produced as Exh.

45. Dr. Azher Hussain, he had examined appellant Shaukat Hayat regarding his sexual capability and has produced the certificate as Exh.48. Dr. Aftab Aziz, he had examined accused Mohammad Nawaz Tanoli on 1st March, 1987, regarding his sexual capability and has produced the certificate as Exh.

50. Asif Hussain, who had come on hearing commotion at the place where the dead body of Mohammad Masoom Ali was lying and has acted as Mashir of inquest report, which he has produced as Exh.

52. Masood Ahmed, resident of Siddique Plaza, Hyderabad, P.W. 18, he had taken appellant Shaukat Hayat alongwith his car to debtor Sabir for repairs of mudguard, Tapedar Ghulam Mustafa, P.W. 19, he had prepared the sketch of wardat where the dead body of Mohammad Masoom Ali is said to have been lying and has produced the same as Exh.57. Mohammad Sabir, dentor, P.W. 20, he had welded whole of the white Charade car of appellant Shaukat Hayat by hammering and putting lapis on the hole, he has also produced sketch of the hole, drawn by him in the Court, as Exh.

59. Dr. Amanullah, Medico-legal Officer, Jinnah Hospital, Karachi, P.W. 21, he had carried on post- mortem on the dead bodies of Mst. Salma Jabeen and Asma Jabeen, the daughters of Mohammad Masoom Ali and has produced the post-mortem reports as Exh.61, and Exh.

62. Dr. Nasim Ismail, Medico-legal Officer, Abbasi Shaheed Hospital, Karachi, he had carried on post-mortem on the dead body Mohammad Masoom Ali and has produced the post-mortem report as Exh.

64. Tapedar Habibullah P.W. 23, he had prepared the sketch of the place from where the dead bodies of Mst. Salma Jabeen and Asma Jabeen were recovered, the sketch has been produced as Exh.67 and Exh. 68 Haji Ghulam Mohammad P.W. 24, he had found the dead bodies of the two girls lying near Chaukundi graveyard, and had informed the police accordingly, the entry has been produced by -him as Exh. 70, the police had prepared such Mashirnama of dead bodies and recovered the pieces of bangles and glass of spectacles in his presence and the Mashirnama has been produced by him as Exh.

71. He has also produced inquest reports as Exh. 72, and Exh.73. Mohammad Hussain, the then Incharge Police Post Bhains Colony, P.W. 25, he was informed about the presence of dead body of two girls and had kept the entry Exh. 70, he had also gone to the place of wardat and prepared Mashirnama of dead bodies and inquest reports which have been produced by Ghulam Mohammad, Mst. Azra Abbasi, daughter of Mohamniad Masoom Ali. P.W.26, Maqbool Asif Bajwa, the then S.H.O. Police Station New Karachi, P.W.27, he had recorded the information given to him by complainant, Saiful Islam, in Roznamcha and thereafter accompanied Saiful Islam and Syed Asif Mehmood, to the place where the dead body was lying. He complied with the formalities under section 174, Cr.P.C. In presence of Junaidur Rahman and Syed Asif Hussain. He then referred the dead body to Abbasi Shaheed Hospital, for post-mortem examination and report. He has produced Mashirnama of wardat as Exh. 18, entry in Roznamcha regarding information given by Afaq Rahman was produced as Exh. 7-A, Station diary of Police Station New Karachi as Exh. 78, and certified copy of entry at serial No, 45, in the station diary as Exh.79, 154 Cr.P.C. Book containing the F.I.R. Recorded at North Karachi Police Station in consonance with section 154 Cr.P.C. As Exh.

80. Mashirnama of recovery of pillow suspected to be stained with blood, Chader Sindhi rilly, suspected to be stained with semen, blood-stained earth, three photographs and a certificate found from near Chaukundi graveyard as Exh.81, letter written by him to the Chemical Examiner as Exh.82, letter written to D.S.P. For approval for sending articles to the Chemical Examiner Exh.

83. Haji Mohammad Ehsan, A.S.I, C.I.A., P.W. 28, he had acted as Mashir of production of licensed revolver of accused Mohammad Nawaz Tanoli by his brother Ghulam Mohammad alongwith two missed and three live cartridges, revolver was having broken plastic at its handle; and the Mashirnama has been produced as Exh.93. Ghulam Abbas, A.I.-G. Criminalistic Division, Sind Police, Karachi, P.W.29, he has produced letter dated 8-2-1987, written by Inspector Mohammad Khan of C.I.A. For deputing expert for taking specimen of tyre prints of the car, letter dated 11-2-1987, sent by Inspector Mohammad Khan for examining the cross-holes in the rear seat and roof of the car, secured from appellant Shaukat Hayat as Exh. 98, another letter dated 11-2- 1987, forwarding a bullet recovered from the brain of deceased Salma Jabeen received from Jinnah Hospital alongwith pistol and six live cartridges recovered from accused Shaukat Hayat for examination and report as Exh. 99, letter dated 19-2-1987, written by Inspector Mohammad Khan of C.I.A. For comparing the moulds of tyre marks taken from the place from where the dead bodies of two girls were found and the specimen of tyre marks of the car secured from Shaukat Hayat as Exh.100, letter dated 24-2-1987, written by Mohammad Khan Inspector C.I.A. For examining the pieces of bangles and eyeglass recovered from the car of accused Shaukat Hayat, and specimen pieces recovered from the place where the dead bodies were lying as Exh.

101. Letter dated 10-3-1987, forwarding the sealed packets of bangles received back from the Chemical Examiner, for comparison which bears endorsement regarding receipt also as Exh. 102, letter dated 10-31987, sent by Inspector Mohammad Khan sending revolver, recovered from Mohammad Nawaz Tanoli, for examination and report as Exh. 103, report from A.I.-G. Ghulam Abbas Jaferi, regarding examination of Charade car Exh.104, another report dated 30-4-1987, regarding examination of pieces of glass of bangles as Exh. 105, third report regarding fifteen pieces of bangles secured from dead bodies and nineteen pieces of bangles secured from the car as Exh.

21. 196, fourth report regarding revolver produced by Ghulam Muhammad brother of accused, Mohammad Nawaz Tanoli, as Exh. 107, fifth report regarding comparison of tire marks Exh. 108, and the letter dated 10-7-1987, sent by Inspector Mohammad Khan for return of articles which were sent for examination Exh.109. Abdul Rauf, D.S.P. Finger Print Bureau, he has produced examination report, regarding tire marks found at Chaukundi graveyard as Exh.114. Photographs of tyres of car recovered from appellant Shaukat Hayat as Exhs.115 to 124. Moula Dad Khan Sub Inspector Forensic Science Laboratory Criminalistics Division, Karachi, he has produced report regarding examination of Charade car bearing No,233-035 as Exh. 127, which shows that there was corresponding hole in the ragzine inside the car and the hole on the roof which was welded. That there was blackening around the hole of ragtime. There was a hole on the back support of rear seat and in the right lower portion of dickey cover. It further shows that a small broken plastic piece of dim black colour was found affixed in the part of the rear seat, he has produced photographs taken by him as Exh.128 and Exh.129, report regarding examination of pistol recovered from appellant Shaukat Hayat as Exh.

22. 130, which shows that the bullet recovered from the brain of Salma Jabeen was fired from the pistol recovered from Shaukat Hayat. Photographs taken by him as Exh. 131, opinion regarding tyre marks found near Chaukundi graveyard Exh. 132, and specimen tyre marks preserved through photographs and moulds, photographs as Exh. 133, opinion regarding bangles pieces Exh. 134 which shows that the pieces of bangles found from the Charade car were in agreement with the groups of the pieces of bangles recovered from the dead bodies, opinion regarding plastic piece recovered from the car was compared with the broken piece of butt of the revolver belonging to appellant Mohammad Nawaz Tanoli, Exh. 135, and the same were in agreement with each other.

23. Mashirnama regarding recovery of plastic pieces of revolver dated 9-3-1987, Exh. 137, Mashirnama regarding taking of specimen moulds of the rear tyre of the car, Exh. 138, and report regarding (thirty-two) .32 bore pistol No, 812005, Astra Model 4000 Exh.

139. Baby Sadia Farah daughter of Mohammad Masoom Ali P.W. 33, she was of about nine years of age and since according to the learned trial Judge she was ihcapable to give intelligent and sensible answers, she was not examined. Mohammad Khan, Inspector C.I.A. (South), Karachi P.W.34, he was associated with the Investigation of the above case and under the direction of Karachi, Mr. Iftikhar Rashid and Mr. Altaf Ali Khan Superintendent Police, C.IA. Since there was no direct evidence available in the case, he approached various police stations in Karachi to find out the clue of any other identical incident. Ultimately, he found F.I.R. No, 458 of 1986, registered under sections 365, 392 and 34, P.P.C. Read with section 17(3) of Enforcement of Hudood Ordinance, against the unknown persons at Police Station New Town, Karachi, in which case the culprits had picked up ladies/girls and small children in a white Charade car from near a marriage hall, while going through the papers, he succeeded in ascertaining the clue regarding the description of culprits and continued collecting further information. On the basis of the information, so collected he called Sub-Inspector Shaukat Hayat at C.I.A. Centre who came there, on 31-1-1987, at 11-30 in his own white Charade Car No, 233-035. In the meantime, Crime No, 458 of 1986 was also transferred to him for further investigation. Before Shaukat Hayat reached at C.I.A. Centre, complainant Afaq Rahman along with P.Ws. Anis and Muhamad Sharif also reached at C.IA. Centre. He arrested accused and also secured the white Charade car in crime No, 458 of 1986, under Mashirnama which was produced as Exh.11. He took search of the car and discovered blood-stained underlay, mat and seat covers of the car. There were holes through and through in the roof and back support of the rear seat of the car. He also found broken pieces of bangles, one black Moti and pieces of glass of spectacles from beneath rear seat which was secured by him. He also secured identity card of accused Shaukat Hayat, his police identity card, curfew pass containing the number of his car issued by D.M.L.A.

24. Badin and his name' plate alongwith two keys. On 3-2-1987, the investigation papers were entrusted to him officially through a letter which has been produced as Exh.143. Accused Shaukat Hayat during the course of interrogation led the police party to National Highway on 8-2-1987, produced blood-stained clothes and a pair of sandals which he secured under Mashirnama which has been produced as Exh.15. On the same day, accused Shaukat Hayat led the police party to his flat situated in Regency Appartments Gulshan-e-Iqbal, No,4, Karachi, and produced Astra Pistol No, 812005, alongwith six live bullets which he secured under Mashirnama in presence of Mashirs Rustam Ali and Zafar Khan. The Mashirnama has been produced as Exh.16. On 8-2-1987, he produced before Mr. Abdul Ghafoor Memon. A.C.M.-XI, sealed parcel containing incriminating articles 'S' to 'S-10' and bangles pieces and black Moti, eyeglass pieces etc. For identification through P.W. Afaq Rehman, Azra and Jamila. He has produced letter written to Finger Expert Bureau for taking specimen moulds of the tyre marks of white Charade car as Exh.97. He arrested accused Shaukat Hayat in the present case on 8-2-1987. He had sent various articles to the Chemical Examiner and Criminalistic Division for comparison and report. Appellant Muhammad Nawaz Tanoli was arrested on 22-2-1987, in connection with F.I.R. No, 458 of 1986. He interrogated him on 4-3- 1987. Jhulam Muhammad brother of Muhammad Nawaz Tanoli produced licensed revolver of Muhammad Nawaz Tanoli before him of which plastic at the side of the butt was broken near the eye cf the butt. He secured the same under Mashirnama which has been produced as Exh.93. He also secured revolver licence in the name of Muhammad Nawaz Tanoli under Mashirnama and the same has been produced as Exh.94. On 9-2-1987, he secured record from Appollo Service Station regarding the service of the white Charade car of Shaukat Hayat on 9-1-1987, under Mashirnama.

25. The record and the Mashirnama have been produced as Exh.26 and Exh.27. He secured record of the movement of appellant Shaukat Hayat from Police Training School, Shandadpur and the same has been produced as Exh.35. He had referred the revolver of the appellant Muhammad Nawaz Tanoli to Criminalistic Division for examination and report, and the letter has been produced as Exh.103. He has produced the chemical report as Exh.146. On 7-3-1987 he arrested appellant Muhammad Nawaz Tanoli after receipt of chemical report. He had referred the two accused to the Medical Officer for examination and report with regard to their ability to commit sexual intercourse.

26. He has produced the chemical reports regarding semen sent to the chemical examiner as Exhs.147 and 148. He has produced chemical report regarding blood-stained clothes and sandal secured from the bushes at the instance of appellant Shaukat Hayat as Exh.149. He has also produced copies of charge-sheet framed by Special Judge Anti-Corruption, against him in Special Case No, 20 of 1984, 37 of 1984, 38 of 1984 and 39 of 1984 as Exh.150 to Exh.153. He has also produced copies of applications moved by Mr. Sarwar Khan before the A.C.M. No, V, C.I.A., Karachi, for release of the above appellant Shaukat Hayat alleging that accused Shaukat Hayat is in custody since more than twenty-five days. Application dated 5-3-1987 for referring appellant Shaukat Hayat to Medical Board for examination, application dated 20-4-1987, regarding return of white Charade car of appellant Shaukat Hayat, which according to appellant was moved on behalf of the wife of the appellant Shaukat Hayat, in which it was alleged that the said car was taken away by C.I.A. On 27- 1-1987.

27. ' After close of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations and asserted that the case against them was false. However, it was further stated by appellant Shaukat Hayat that he had purchased the car Article 'R' from Autoride, Shaheed-e-Millat Road, Karachi. He has denied that he had been driving the car under fictitious number KAV 1656. Curfew pass Exh.9-B was a fabricated document and it was not secured from his car. He has denied that he was arrested on 31-1-1987. According to him from 8-1-1987 to 10-1-1987 he was present on duty and was sent on V.V.I.P. Duty at Sindhri. Under the orders of the Inspector-General, on the report of Inspector Muhammad Khan entries were fabricated in Exh.33 with the help of P.W. Sultan. The actual Line Officer, Gul Dawood has refused to join hands with Muhammad Khan to fabricate the record. According to him he was not arrested on 31-1-1987 nor he had taken his white Charade Car No, 233-035 to C.I.A. Centre, Karachi. It is also denied by appellant Shaukat Hayat that on search the pieces of bangles, eyeglass and black Moti were secured from the car. It was false that there were two bullet holes in the car or that there was any blood stains on seat covers, under-lay and mats inside the car. The original under-lay of article 'R' has been substituted. The Mashirnama Exh.11 was false. He was arrested on the night between 27th and 28th of June, 1987, from his flat in Regency Appartments. The rest of the allegations have been denied. Appellant Shaukat Hayat has also denied that he had pointed out the place near Mehran Petrol Pump and produced blood-stained articles to the police. The allegations regarding getting the car serviced at the Appollo Service Station and carrying on welding at Hyderabad were also denied. As regards ballistic expert's report, he has stated that P.W.

28. Muhammad Khan had fired the bullet and substituted the original. P.W. Mouladad has given opinion under the orders of Inspector-General. This fact was disclosed in anticipation by Inspector- General in his press conference. He also submitted his written statement in the Court, which reads as under:-- STATEMENT "It is respectfully submitted that I am innocent. I have been implicated falsely by Ch. Muhammad Khan due to enmity.

29. ' I belong to a leading Zamindar family of District Badin. My father late Ch. Ghulam Qadir Gakhra was one of the founder members of Pakistan Peoples Party and a close friend of late Z.A. Bhutto. My father remained the President of P.P.P., Badin, from 1967 up to his death in the year 1979. After the death of my father, my cousin namely Sajjad Gakhra was elected as President of P.P.P. Badin and uptil today he is holding the same post.

30. ' My elder brother was the member of District Council Badin who had resigned from that post in the year 1983 at the call of M.R.D., that in consequence thereof he was arrested under M.L.O. And had remained in detention uptil lifting of Martial Law. My 1st cousin Sajjad was also detained by the Martial Law Authority.

31. ' That after lifting of Martial Law from the country, in June, 1986 Mrs. Benazir Bhutto while visiting District Badin, was kind enough to visit our house as our family had affiliation with her father and party. She stayed for the night in our house. I was present in my house on that day. I offered an Ajrak to her as per tradition of Sind. I produce a photo showing myself with Mrs. Benazir Bhutto after offering Ajrak as Annexure D-1.

32. ' I also produce the newspaper Daily Hilal-e-Pakistan dated 20-11-1976 showing my father shaking hands with late Z.A. Bhutto as Annexure D.2.

33. ' I joined the police force in the year 1976 on merit. After completing the proper course at Shandadpur, I had been posted in different districts. I have never been charge-sheeted. On the other hand my services for the police have been appreciated. I was awarded 6 commendation certificates.

34. ' That I also attended a course of St. John Ambulance of Fist Aid held in Lahore 1981. A photo copy of the same is filed herewith as Annexure D.9.

35. ' In the year 1981 I was transferred to Karachi and my posting was at Sohrab Goth Traffic Section upto 1983 which was situated within the jurisdiction of the Gulberg Police Station. We used to take the traffic defaulters to the lock-up of Gulberg Police Station. So in this way I was introduced with Muhammad Khan who was the S.H.O. Of Police Station Gulberg.

36. ' In end of December, 1982 one of my father's friends Haji Nazir Hussain Butt a leading Transporter and Zamindar of District Badin came to me at Sohrab Goth Traffic Check Post and told me that Muhammad Khan had put his son Asif in the lock-up in a false case and was demanding huge bribe for his release. He asked me to help him. I went to Muhammad Khan Inspector and requested him to release the son of Haji Nazir without any bribe. Muhammad Khan did not hear me and started abusing Haji Nazir's son. Thereafter, I came back and told Haji Nazir that Muhammad Khan has refused to release his son. Haji Nazir's son was acquitted by the Military Court and Muhammad Khan was arrested by the Anti-Corruption Police on the charge of malicious prosecution.

37. Muhammad Khan was under the impression that I was behind Haji Nazir and it was me through whose influence Muhammad Khan was sent to jail. After his release from jail once Muhammad Khan, had approached me for compromise with Haji Nazir as at that time he was under suspension but I refused on the ground that when I had requested him for the release of the son of Haji Nazir, he had abused his son aid had not acceded to my request. I therefore, asked him that I have no influence over Haji Nazir. Muhammad Khan left me by saying that even then he would see me and Nazir.

38. ' In July 1986 I was sent to Shandadpur for Upper Training Course. In the meanwhile once I was called by the then I.-G. Suleman Khaliq on the report of intelligence that I was belonging to P.P.P. I explained to the then I.-G. That although my entire family is of P.P.P. But I myself do not have any affiliation with any political party. However, on the visit of Mrs. Bcnazir Bhutto I had offered Ajrak to her only in view of the tradition of Sind. The then I.-G. Warned me and passed order of my transfer in S.R.P. During training. I went back and continued my training. I completed my training successfully. I was awarded the following certificates on merits. I produce the same as Annexures D-10 to D-16. The course was completed on 27th December, 1986 but the trainees were detained for Special V.V.I.P. Duties as the then Prime Minister Junejo had invited Diplomats at his native place i,e, village Sindhri. So I along with 650 other trainees went to the village of the Prime Minister on 8-1- 1987 and I remained on that duty up to 11-1-1987 morning, and I returned back on 11-1-1987 along with the other trainees to the P.T.S. Shandadpur, where after the roll call it was declared that the course is over and all the trainees were allowed to go back to their respective districts.

39. ' That I came back to Karachi after completing the course. In between the night 27th and 28th I was arrested by Ch. Muhammad Khan. My counsel Mr. Sarwar Khan submitted two applications in the Court of A,C.M. (C.I.A.) West in which the date of arrest has been shown on 27th January, 1987. I produce the same as Annexures D-17 to D-18.

40. ' He had also brought the car of my wife to C.I.A. Centre on the same night. There was no mark of bullet in the roof or in the back seat of the car. There was no blood on the carpet or covers of back scat. No pieces of bangles or eyeglass pieces or black Moti were in it. The original underlay has been subsequently changed by Ch. Muhammad Khan for fabricating the false evidence. That I never led Ch. Muhammad Khan or any police party to National Highway near Mehran Petrol Pump.

41. That no recovery of blood-stained articles was made at my instance. That I never led the police party to my house for the recovery of pistol.

42. ' Although during the entire period of my detention I was never produced before any Magistrate for remand. Yet there is a remand application on the record of the lower Court dated 14-2-1987 in which it has been mentioned that 'Remand of the accused to police be granted for recovery and interrogation'. This application itself belies Muhammad Khan about the alleged recoveries on 8-2- 1987. I produce the same as Annexures D19 to D-?

43. ' That P.W. Rustam Ali is an ex-policeman. He was involved in case F.I.R. No, 122/80 Idd Gah Police Station under section 307, P.P.C. After which his services were terminated. I produce the copy of F.I.R.

44. As Annexure `D-20'. That he is co-partner in bus and other business of A.S.I. Malik Ihsan and that he was already known to police.

45. ' That P.W. Saleem and Abdul Rehman are the employees of Appolo Service Station which belongs to brother of D.S.P. Hashmi of C.I.A. They have deposed against me at the instance of Police. I never took the car to Appolo Service Station. This piece of evidence has also been fabricated.

46. ' That I never took the car to P.W. Sabir for denting. P.W. Sabir is a man of S.I. Younas who was also associated in investigation of this case and he has falsely given his statement due to the pressure of C.I.A. And S.I. Younas.

47. ' That number plate KAV-1656 was not on my car. That I never took the car to Tariq Ali and asked him for changing the same. This number has also been fabricated by Ch. Muhammad Khan and he had detained Tariq Ali, and Tariq had deposed due to pressure of Police.

48. ' That I remained present in P.T.S. But due to the pressure of then I.-G. P.W. Sultan and Muhammad Khan manipulated the police record while S.I. Gul Dawood the actual person on duty was not willing to do so. They fabricated Roznamcha only showing me absent.

49. ' That no Curfew Pass was secured from me or from my car. Muhammad Khan fabricated that Curfew Pass for connecting the fabricated number of car and he has foisted this curfew pass on me.

50. ' That there was no magnet key in my car, therefore, he has also foisted the same.

51. ' That no doctor has ever taken the slide or liquid semen samples from me, nor Muhammad Khan has produced me before any doctor for this purpose. My blood Group is A-B positive and normally the semen group of a person is same as of blood. I produce a card of Karachi Lab. Showing my blood group as A-B positive as Annexure D-21. Ch. Muhammad Khan had also fabricated and foisted slides on me.

52. ' That P.W. Sadia in her 161, Cr.P.C. Statement had stated that her grandfather and her aunts had left the marriage Hall in B-2 Mini Bus. Since Ch. Muhammad Khan was motivated in false prosecution, therefore, he suppressed that statement because it was going against the very theory of prosecution. Therefore, he intentionally suppressed the same. A photo copy of the statement of Sadia is filed herewith as Annexure D-22.

53. ' That during trial P.W. Abdul Ghafoor Memon, Magistrate was shown one Brown color Sandal of No,10, which he said was identified by P.Ws. Azra, Jameela and Afaqur Rehman in his presence. That Sandal was of very large size, therefore, Muhammad Khan wanted small Sandal to be Exhibited to fit in with the feet size of deceased girls. Later on when P.W. Shamsul Islam was examined he also produced another sandal of Parrot Color. Since pair of sandal of Camel color were shown to Azra and Jameela, therefore, P.W. Muhammad Khan managed to get brown color sandal disappear from the case property. As the case property was being sent to C.I.A. Centre after Court time and it was convenient for them to substitute or remove any article of the case property which suited them. Junaid Rehman in his 161, Cr.P.C. Statement (copy attached as Annexure D-23) has stated that deceased girls were wearing brown colour and parrot colour sandal, as brown colour sandal was made to disappear therefore, A.P.P. Has given up Junaid Rehman as P.W. In this case. It was not the case of prosecution that deceased girls were wearing Camel colour sandals.

54. ' That North Karachi Medical Centre was functioning at that time and that P.W. Afaq incorrectly stated that it was under construction at that time. That on 13-1-1987 there was strike in North Karachi and black flags were hoisted. A copy of Daily Aman dated 14-1-1987 is annexed herewith showing clearly North Karachi Medical Centre and is marked as D-24.

55. ' That after the incident of this case people came out and took out procession against the police and administration, the Army was also called. I produce the cutting of Daily Jung dated 11-1-1987 as Annexure D-25.

56. ' That thereafter law and order situation in Karachi became serious. This question arose in the then National Assembly and statement was made on behalf of the Prime Minister that he would remain in Karachi until normalcy of the situation. A copy of the Daily Jang dated 14-1-1987 is annexed as D- 26.

57. ' That Junaidur Rehman also appealed to the people to cool down but the mood of the people was very furious. The press conference of Junaid published in daily Jang dated 13-1-1987 is annexed D- 27.

58. ' Due to disturbances curfew was imposed in New Karachi and other parts of Karachi. A copy of daily Jang, dated 14-1-1987 is annexed as D-28.

59. ' That the disturbances also started in Hyderabad and Sukkur and curfew was imposed. A copy of daily Jang dated 14-1-1987 is submitted herewith as Annexure D-29. That the then Chief Minister Sind in his press conference told the newsmen that Wali Khan cannot be excluded from the situation of Karachi. He also accused P.P.P. And N.A.P. The press conference published in daily Jang dated 17-1-1987 is filed herewith as Annexure D-30.

60. ' That since the situation in Karachi was dangerous therefore, for cooling down the sentiments of people in Karachi, P.W. Muhammad Khan arrested me, and that the then I.-G. Announced my arrest in press conference and the news was flashed on T.V. And thereafter the people cooled down.

61. ' That F.I.A. Had also come into picture because of the abnormal situation in Karachi. Every Agency wanted to have credit of discovery. The F.I.A. Arrested 6 persons in this case and news appeared in daily Morning News dated 25-1-1987 which is filed as Annexure D-31.

62. ' Ch. Muhammad Khan is known fabricator in police. He had fabricated a false Mashirnama of recovery against Surgeon Rizvi. Such news were published in Newspaper. A copy of the same is filed herewith as Annexure D-32.

63. ' That he was suspened by the D.I.-G., Karachi when on his surprise visit of his Police Station Napier, he found a person confined in the lock-up without any remand or case. A copy of the said newspaper is filed herewith as Annexure D-33.

64. ' That the C.I.A. Had arrested one Tarig and a History-sheeter of Malir namely Niazi in this case. Such news appeared in the Daily Aman dated 21-1-1987. A copy of such. News is annexed herewith as D.-34..

65. ' That one of the Provincial Minister of Government of Sind namely Abbas Bawazir in his statement published in daily Jang dated 24-1-1987 accused Jamat-e-Islami and People's Party for the disturbances in the city. A copy of such newspaper is hereby annexed as D-35.

66. ' That I am innocent and seek justice, nothing but justice. Ch. Muhammad Khan arrested me in this case due to enmity, fabricated false evidence for getting early promotion which had been withheld due to the pendency of corruption cases against him in the Court of Special Judge Anti- Corruption."

67. ' Accused/appellant Muhammad Nawaz Tanoli has denied the allegations and has further stated that he was arrested on 20-2-1987, and not on 22-2-1987. The revolver was secured by Sub- Inspector Shah Nawaz during the search of his house in presence of his brother Ghulam Muhammad and one Nazir Tanoli. At the time of recovery, the plastic available at the butt of the revolver was not broken near the eye of the butt. He has denied that the broken piece of plastic of the butt was recovered from the car of Shaukat Hayat. The report of ballistic expert was procured by Inspector Muhammad Khan. He has also submitted his written statement, which reads as follows:-- STATEMENT ' It is respectfully submitted that I am innocent and have been falsely implicated by Inspector Ch. Muhammad Khan due to enmity and my political affiliation with Pakistan People's Party.

68. ' My political affiliations were with the Pakistan People's Party. I was Ward President of P.P.P.

69. Patelpara, Karachi. I had filed nomination papers in local body election, 1983, and my nomination papers were rejected on 1-9-1983 by the then Commissioner Karachi on the ground that I was affiliated with the P.P.P. I submit the certified copy of the order of Commissioner (Annexure A').

70. ' That I am also a founder member of P.P.P. Lawyers Forum which had invited the Co-Chairperson of the party i,e, Mrs. Benazir Bhutto who was pleased to attend the function and a group photo was taken which is filed herewith (Annexure B').

71. ' That the' Martial Law Government headed by General Ziaul Haq was deadly against the Pakistan People's Party and hundreds of its workers were prosecuted on flimsy charges. After lifting of Martial Law the Administration was the same and the power remained with General Zia. So I have been made the victim by the Administration due to my political affiliations with Pakistan People's Party. This fact is established from the news published in Daily Jang Karachi, dated 17-1-1987, the Press conference of the then Chief Minister of Sind at Hyderabad. (Photo copy of the newspaper attached as (Annexure C).

72. ' That one Akber Baig was arrested by C.I.A. In this case. There was a murder case of Police Station Joharabad vide F.I.R. No, 329 of 1985 in which that Akbar Baig was a co-accused alongwith accused Moinuddin, which is presently pending in the Court of the learned District and Sessions Judge, Central, Karachi, bearing Sessions Case No, 519 of 1988 (new number). I was defending that Akbar Baig along with Umar Farooq, Advocate. I produce the certified copy of that Vakalatnama as (Annexure D'). That on 20-2-1987, it was Friday when the mother of Akbar Baig approached me in my house and told me weeping that her son Akber was in the custody of C.IA. And that he had been badly beaten by Inspector Muhammad Khan of C.I.A. This was told to her by the Mohallah boys, namely, Tariq, Shoib and Najjmi, who were also detained by C.IA. Along with Akber and were then let off later on, and that, Akbar's condition was serious. I picked one of my Vakalatnama and went to C.I.A. When I entered there, Inspector Muhammad Khan was not there, so the person who was posted on guard allowed me to see Akber after my introduction by myself. I saw Akber and found that really his condition was serious. There were visible injuries on his person. He started weeping and begged me for help. I got his signature on my Vakalatnama. In the meanwhile, Inspector Muhammad Khan came and first of all he abused the Constable who was on guard duty as to why he had allowed me to see Akber and then he abused me also, and on my protest there was altercation between me and Inspector Muhammad Khan. He also threatened me that he would see me as he had seen many cheap Advocates of Rs,20 like me. It is further submitted that I left the C.I.A. Centre and came to my house and told the mother of Akber that I would file petition in the Honourable High Court on the next day, as C.I.A. People had really beaten her son badly. She told me that she was going to Altaf Hussain, the M.Q.M. Leader for seeking help in this matter.

73. ' That on the same day in the evening i,e, 20-2-1987, S.I. Raja Ghous and Raja Mehboob alongwith S.I. Shah Nawaz came at my house. The bell rang and I appeared at the door, no sooner did I come at the door Raja Mehboob and Ghous alongwith the police party put me in the pick-up of Police and took me to C.I.A. And while S.I. Shah Nawaz alongwith the other policemen trespassed in my house and then searched the same subsequently, which fact was told to me by my brother Ghulam Muhammad and Nazir Tanoli who is my first cousin and they told me that S.I. Shah Nawaz made a thorough search of the house. No incriminating material was found. However, the licensed revolver of mine alongwith licence and certain personal photographs were taken away by the police party. It is submitted that so far as the revolver is concerned, the plastic of the handle was not broken and that the C.I.A. Police particularly Inspector Ch. Muhammad Khan with the active connivance of S.I. Mouladad subsequently for the purpose of fabricating false evidence, have broken the same.

74. ' It is submitted that Akber Baig was arrested in case F.I.R. No 458/86, Police Station New Town and 22/87 of Police Station New Karachi and a detention order was passed against him by the District Magistrate East. A photo copy Annexure 'E' of the same is filed herewith and copy of the same is also on the case file which has been sent up by the Magistrate. This detention letter shows that the District Magistrate had passed that order on the basis of evidence laid before him. It is submitted that subsequently said Akbar Baig was let off by Ch. Muhammad Khan for the reasons best known to him and he falsely implicated me in this case due to my political affiliation and due to altercation which took place between me and Ch. Muhammad Khan at C.I.A. Centre.

75. ' I am victim of enmity of Inspector Muhammad Khan, I am innocent, justice be done to me.

76. ' That Ch. Muhammad Khan also fabricated the semen slides. I was never produced before any doctor on 7-3-1987 or 15-3-1987 for taking slides. My blood group is B Positive' and generally the semen group remains same as of blood. I produce my Card issued by Karachi Laboratory showing the blood group as B postive' (Annexure 'F').

77. (Sd.)

78. Nawaz Tanoli accused."

79. ' The appellants examined themselves on oath as envisaged by section 340(2), Cr.P.C. Appellant Muhammad Nawaz Tanoli has also examined his brother Ghulam Muhammad in defence.

80. ' D.W. Ghulam Muhammad brother of appellant Muhammad Nawaz Tanoli has deposed that his brother Muhammad Nawaz Tanoli was arrested on 20-2-1987, by Sub-Inspector Shah Nawaz. The said Sub-Inspector had also taken search of their house and had taken away a licensed revolver of his brother Muhammad Nawaz Tanoli. The revolver was not having broken plastic at its butt near the eye of the butt. He had also produced licence before the police officer. He has produced a copy of letter received from Aiwan-e-Saddar, Islamabad, by his mother in respect of complaint sent by her regarding false involvement of his brother in this case as Exh.159. In cross-examination, he has denied that his brother was arrested on 22-2-1987, he had not made any complaint to any authority against the breaking of almirah and taking away of revolver by police from their house.

81. ' The learned Special Judge while relying upon the following pieces of evidence has convicted and sentenced the appellants as described above vide judgment dated 17th October, 1988.

(i) recovery of crime bullet from the head of victim Salma Jabeen during her post-mortem examination by Dr. Amanullah of Jinnah Hospital, Karachi, a pair of Bundas containing black Motis from her ears and two pieces of broken bangles from her dead body.

(ii) recovery of black Moti alongwith pieces of broken bangles and bloodstained seat cover, mats, underlay etc. On 31-1-1987, from white Charade car of appellant/accused Shaukat Hayat.

(iii) Expert report regarding matching of black Moti (Article L') with Bundas (Article 'W-2') and bangles pieces recovered from the dead body of Salma Jabeen with the bangle pieces recovered from white Charade car of appellant Shaukat Hayat.

(iv) Production of unlicensed pistol alongwith black holster and six live bullets by Shaukat Hayat from his flat before the police on 8-2-1987, while he was under arrest.

(v) Report of ballistic expert showing that crime bullet recovered from the head of deceased Salma Jabeen was fired from the unlicensed Pistol No, 812005 produced by accused/appellant Shaukat Hayat before police.

(vi) Recovery of blood-stained clothes and pair of sandles etc. Of deceased girls from the bushes near Mehran Petrol Pump situated on National Highway Landhi on 8-2-1987 at the pointation of appellant Shaukat Hayat.

(vii) Absence of appellant Shaukat Hayat on 8th, 9th and 10th of February, 1987, from Police Training School Shandadpur, the place where he was on training at the time of incident.

82. (viii)Evidence of P.W. Sabir, regarding welding of hole in roof of white Charade car belonging to appellant Shaukat Hayat.

83. ' Recovery of blood-stained seat covers, mats and underlay of white Charade car belonging to appellant Shaukat Hayat and evidence of employees of Appollo Service Station, Muhammad Ali Housing Society, Karachi, regarding the service of white Charade car of appellant/accused Shaukat Hayat.

(x) Report of ballistic expert regarding matching of moulds of tyre marks of the white Charade car with the moulds of tyre marks found at the place where the dead body of victims Salma Jabeen and Asma Jabeen were lying.

84. ' Production of .32 bore licensed revolver along with five bullets and a licence bearing No, 270, issued by District Magistrate, Karachi (East), in the name of accused/appellant Muhammad Nawaz Tanoli having broken plastic at its butt near the eye of butt, produced by Ghulain Muhammad brother of appellant/accused Muhammad Nawaz Tanoli.

85. ' Recovery of piece of plastic by ballistic expert on 9-3-1987 from white Charade car belonging to appellant Shaukat Hayat, during its examination, and report of the ballistic expert that it matched with broken plastic of licensed revolver of accused Muhammad Nawaz Khan Tanoli.

(xiii) Medical evidence.

86. ' The present appeal is directed against the above judgment of conviction. The case has also been referred to us by the learned Chairman/Special Judge for confirmation of death sentence of appellants.

87. ' We have heard Mr. Azizullah K. Shaikh, learned counsel appearing for appellant Shaukat Hayat, Mr. Sarwar Khan, learned counsel appearing for appellant Muhammad Nawaz Tanoli, Mr. K.M. Nadeem, learned AA.-G. Appearing for the State, Mr. Abdul Wahab Khan, learned counsel appearing for the complainant, and have gone through the R&P of the case.

88. ' Mr. Azizullah K. Shaikh, learned counsel appearing for appellant Shaukat Hayat has raised the following contentions before us:--

(1) That there was no evidence that the appellants had abducted the three deceased and committed Zina with deceased Salma Jabeen and Asma Jabeen. That the learned Chairman/Judge, Special Court had no jurisdiction to try the appellants under Zina (Enforcement of Hudood) Ordinance, 1979, and consequently their conviction was illegal and without jurisdiction.

(2) That there was no evidence that the car recovered from appellant Shaukat Hayat was used in the crime.

(3) That the number of white Charade car in which the three deceased persons are alleged to have been abducted was not mentioned in the First Information Report. The persons who had seen the white Charade car, while speeding away after throwing late Syed Masoom Ali were not examined and no identification test of white Charade car was held through them. The incident had taken place on 8-1-1987 at 11-00 p.m. While the car is alleged to have been taken to Appolo Service Station, Karachi on 9-1-1987 but Muhammad Salim P.W.5 who had carried on service of the car does not say that there was any hole in the roof of the car or in the rear seat of the white Charade car.

(4) That the prosecution story regarding recovery of broken pieces of bangles, black Moti etc. From the above white Charade car on 31st January, 1987, at C.I.A. Centre was absurd, unnatural and unbelievable. The Mashirs of recovery namely Afaq-ur-Rehman and Muhammad Sharif were interested witenesses, and therefore, no reliance could be placed on recovery.

(5) That the recovery of blood-stained clothes and sandal on 8-2-1987, at 12-32 noon at the instance of appellant Shaukat Hayat was absurd and unreliable. Specially because recovery was made after 10 days and identification of articles was false as no other article was mixed with them.

(6) That the bullet which is alleged to have been recovered from the head of deceased Mst. Salma Jabeen was mishandled and there was no guarantee that it was the same bullet which was found from the head of Mst. Salma Jabeen. It was further contended that S.H.O. Muhammad Khan was on inimical terms with the appellants and it was at his instance that false report was obtained from the Ballistic Expert.

(7) That allegation of absence of appellant Shaukat Hayat from Police Training School, Shandadpur from 8-1-1987 to 10-1-1987 was false, the entries Exh.33, Exh.34 and Exh.35 were not kept by Sultan Wali Khan P.W.9 and therefore, no reliance could be placed on these entries.

(8) That the evidence of Masood Anwar P.W.17 and Muhammad Sabir P.W.20 on the point of welding/repairs of the hole of the white Charade car was contradictory and unreliable.

(9) That taking of moulds of the tyre marks from the place where the dead bodies of two victim girls were found and consequent comparison with the moulds of the tyre marks of the white Charade car belonging to appellant Shaukat Hayat was absurd and unreliable.

(10) That the evidence of complainant Afaq-ur-Rehman was contradictory, he has made improvements and developments in his evidence at the trial, and therefore, no reliance could be placed on his evidence.

(11) It was lastly contended that Investigating Officer Muhammad Khan was a previous convict, and was facing trial in a murder case, and corruption cases. He had enmity with appellant Shaukat Hayat and had no authority to investigate the case, and therefore, no reliance could be placed on his evidence.

89. ' Mr. Sarwar Khan learned counsel appearing for appellant Muhammad Nawaz Tanoli, has contended that the alleged broken plastic piece of butt of revolver was not recovered from the car when it was searched at C.IA. Centre. That even according to the prosecution the revolver was produced by Ghulam Muhammad brother of the appellant and not by appellant. It was further contended that the recovery of broken piece of plastic was not immediately after the incident and therefore, it could not connect the appellant with the alleged crime.

90. ' In reply Mr. K.M. Nadeem learned AA.-G. Appearing for the State, has contended that:--

(1) That the incident took place in January, 1987, the challan was submitted in Court in April, 1987 and the case was transferred to the Special Court for Speedy Trials Karachi on 27th June, 1988. That the Ordinance No, II of 1987 was repealed by Act XV of 1987 which came into force on 16th November, 1987. According to him the learned Special Court could try the appellants under Zina Ordinance by virtue of section 2(c) and the schedule of the said Act. In this connection he has specifically relied upon the words 'and any other offence committed in the course of the same transaction in which any of the said offences is committed, or in addition to, or in combination with, such offences mentioned in the schedule. However, he was of the view that there was no evidence that the appellants had committed Zina with the two deceased girls.

(2) That section 2 of the Police Act does not make any distinction between ordinary police and C.IA.

91. And no proceedings/investigation conducted by Police Officer shall at any stage be called in question on the ground that the said officer was not empowered under this section to investigate.

(3) That according to Articles 111, 112 and 121 of Qanun-e-Shahadat certain facts of which Court can take judicial notice need not be proved. Moreover appellant Shaukat Hayat had failed to prove that he was at Sindhri on V.V.1.P. Duty on the day of incident.

(4) That the pieces of evidence taken in isolation may not prove the case against the accused, but if cumulative effect is considered, the offence is proved against the accused.

(5) That the hypothetical possibilities are to be ignored. That the suspicious circumstances, had to be explained by the accused.

(6) That in this case the evidence produced by the prosecution is circumstantial evidence, and therefore, the rule ()I corroboration does not apply to the facts of the present case.

(7) That mere delay in pointation of places from where weapon of offence and blood-stained articles were produced by appellant Shaukat Hayat was not fatal, as it depends upon the resistance put by the accused. In the present case the accused was himself a Police Officer and therefore, it took time for police to elicite information from him.

(8) There can be 2 F.I.Rs, and 2 parallel investigations. Number of investigations is not limited.

(9) That the Court can take into consideration the contradictions but not the omissions or improvements as the same could not be considered as contradictions.

(10) That the bullet recovered from the head of deceased Salma Jabeen has been proved to have been fired from the revolver produced by appellant Shaukat Hayat.

(11) That the prosecution had proved its case beyond reasonable doubt against appellant Shaukat Hayat and he was rightly convicted. However, he further submitted that there was no evidence to connect the appellant with the offence of Zina (rape) and therefore, he did not support conviction of appellant Shaukat Hayat under section 10(3) of Offence of Zina (Enforcement of Hudood)

92. Ordinance, 1979.

93. ' As far as appellant Muhammad Nawaz Tanoli was concerned, the learned A.A.-G. Contended that there was no evidence against him to connect him with any of the offences for which he has been convicted, and therefore, he did not support conviction of appellant Muhammad Nawaz Tanoli.

94. ' Mr. Abdul Wahab Khan, learned counsel appearing for the complainant has adopted the arguments of Mr. K.M. Nadeem learned A.A.-G. Appearing for the State. He has further contended that the Punjab Police Rules are not applicable to Sindh, and that Inspector-General of Police had power to transfer the investigation to any agency. That the complainant Afaq-ur-Rahman had stated about white Charade car in his 154, Cr.P.C. Statement but he was unnecessarily cross- examined for six days and, therefore, commissions were bound to be there. According to him, only those commissions which are on vital points can be considered as contradictions. That the accused could produce some witnesses who were present with him at Sindhri on V.V.I.P. Duty in order to establish his plea of Alibi but he has failed to produce any witness. That the evidence of P.W. Saleem shows that appellant Shaukat Hayat was at Karachi on 9th January, 1987. That the appellant had also pointed out the places from where blood-stained clothes and other articles including crime weapons were recovered. However, he also did not support conviction of appellant Muhammad Nawaz Tanoli.

95. ' Dr. Nasim Ismail P.W.22 had carried on post-mortem on the dead body of deceased Syed Masoom Ali, and he found the following injuries on his person:-

(1) A haematoma on the back of the left side of the head.

(2) Two small lacerated wounds on the posterior aspect of the vault of the skull measuring 1" x 1/4" x bone deep.

96. ' The injuries were ante-mortem in nature and appeared to have been caused by some hard and blunt substance. The age of the injuries was between three to six hours, time between death and post-mortem was about three to six hours.

97. ' On internal examination be found a depressed fracture of the left side occipital region. The fracture was extending upto the lower part of the skull and the floor of the posterior cranial fossa was filled with blood. The brain matter at the posterior and at the left cerebral hemisphere was lacerated. The posterior surface of the brain was covered with blood. The death was due to haemorrhage and shock resulting from the acute head injuries. He has produced the postmortem notes as Exh.64.

98. ' Dr. Amanullah had carried on the post-mortem on the dead bodies of deceased Salma Jabeen and Asma Jabeen and according to him, he had found the following injuries on the person of deceased Salma Jabeen:--

(1) Gunshot wound 1/4" x 1/4" on forehead between eye brows, margins were rough inverted, blackening and charring all around the wound was present.

(2) Three round shape burn injuries on left side face over an area of 2" x 2", each wound was of 1/2" diameter.

(3) Incised wound on the left side neck at left angle of mandible half 1/2" x 1/8" x skin deep.

(4) Multiple abrasions left clavicle and shoulder joint over an area of 6" x 4".

(5) Multiple linear abrasion on back of whole chest and also on back of abdomen.

(6) Multiple abrasions and contusions on both sides of neck as a whole.

99. Examination of genital organs:

(1) Pubic hair and medial sides of both the thighs were stained with blood.

(2) Blood stains were available on perineal region.

(3) Scratches around the vagina were seen.

(4) Hymen was freshly torn (ante-mortem).

(5) Vaginal tear was seen at 6-00 o'clock position.

(6) Superficial eptithelium was seen peeled off from right and left knee joint. On internal examination he found the following damage:--

(1) Meninges was stained with blood.

(2) Fracture of skull vault was noted at the side of injury/wound.

(3) One bullet was recovered from skull cavity and the same was sealed and handed over to police. Stomach contained small quantity of digested food-particles.

(4) Loops of the intestine were loaded with contents and gases of putrification.

(5) Urinary bladder was empty.

(6) Uterus was empty and pale on cut section.

(7) Vagina contained blood clots.

100. ' He took vaginal swa bs and the same were sent to chemical analyser.

101. Cause of death: ' According to him the death appeared to be the result of some fire-arm injury. Rape was also committed on her (ante-mortem). The vaginal swabs were preserved for confirmation. The sealed items were handed over to Police Constable Mustafa of Police Station Quaidabad, Karachi. Time between death and post-mortem appeared to be twenty-four to thirty-six hours.

102. ' He had found the following injuries on the person of deceased Asma Jabeen:--- Surface wound and injuries:--

(1) Two incised wounds on right face, each 1/2" x 1/8" skin deep.

(2) One round shape burn injury, muscle deep on left side and four injuries of same size were available on left forearm.

(3) Gun shot wound 1/4" x 1/4" on right side of the neck about 4" below and behind right ear, margins were rough, inverted. Blackening and charring around the wound were available (wound of entry).

(4) One punctured wound left side of the back 1/2" x 1/2" at 3-1/2" below and behind left ear margins were rough, and averted, with no blackening and no charring (wound of exit).

(5) Multiple linear abrasion on back of chest, back of abdomen and over both buttocks.

(6) Multiple contused abrasions on both arms.

(7) Half nail of left middle linger was detached from its bed and averted.

(8) Multiple contusions on left thigh on back and lateral surface.

(9) Both nipples had round inconsistency. Examination of genital organs:--

(1) Scratches round the vagina were seen.

(2) Hymen was freshly torn (ante-mortem).

(3) Perenial region was stained with blood.

(4) Pubic hair were stained with blood.

(5) Vaginal tear was at 9-00 o'clock position seen.

(6) Defused swelling with redness was observed, on medial side of both the thighs.

103. ' All the injuries were ante-mortem in nature.

104. Post-mortem injuries:- ' Superficial, epithelium peeled off from the following parts of the body:

(a) Left and right leg, back of right thigh and left shoulder.

105. ' On internal examination, he discovered the following:-- ' Head ' Skull bones were intact. On opening of skull cavity and meninges the same were found normal.

106. Brain matter was pulpy in consistency.

107. ' Neck Track of bullet.

108. ' On dissecting the bullet injury on the right side of the neck it was found that it communicated with the punctured wound on the left side of the neck.

109. ' The cervical vertebrae Nos.2 and 3 were broken into pieces, spinal cord was damaged.

110. ' Thorax ' Thoaxia cage was normal. Chest cavity was empty. Both the lungs were healthy with pale on cut section.

111. ' Heart was normal and empty. Abdomen

(1) All visceras were healthy.

(2) Stomach contained few c.c. Of normal juices.

(3) Loops of intestine were loaded with their contents and gases of putrification.

(4) Uterus was empty and pale on cut section.

(5) Urinary bladder was empty.

(6) Vagina contained clotted blood. Swab was taken therefrom and sealed. It was handed over to police for chemical analysis.

112. ' Cause of death.

113. ' According to him the death was the result of fire-arm injury with fracture of cervical spine, cardio respiratory failure. Rape was also committed (ante-mortem) on her. For confirmation vaginal swab was preserved.

114. ' Time between death and post-mortem was about twenty-four to thirty-six hours.

115. ' All articles specified hereinabove were sealed and handed over to Maqbool Asif Bajwa, the then S.H.O. New Karachi.

116. ' Before he started with the post-mortem examination he had found one brasserie available on the body and there was no other clothes on the body. He had also recovered three artificial hair clips, two broken bangles (Chooris) two artificial earnings, one artificial ring, and wooden piece from hair. Small wooden pieces of bushes were also found; deeply penetrated in the hair of scalp.

117. ' He has produced the post-mortem reports as Exh.61 and Exh.62.

118. ' From the above evidence and the evidence of complainant Muhammad Afaq Rahman P.W.1, Mashir Saiful Islam P.W.4, Mashirnama Exh.18, evidence of Mashir Asif Hussain P.W.17, inquest reports Exh.52, Exh.72 and Exh.73 and the evidence of Haji Ghulam Muhammad P.W.14, it has been proved that Syed Muhammad Masoom Ali, Salma Jabeen and Asma Jabeen were murdered and that deceased Salma Jabeen and Asma Jabeen were subjected to Zina-bil-Jabar.

119. ' Before the evidence produced by the prosecution is taken into consideration it will be appropriate to consider the legal objection raised by Mr. Aziz Ullah K. Shaikh, learned counsel appearing for the appellant Shaukat Hayat regarding the jurisdiction of the learned trial Judge to try the appellants under Zina (Enforcement of Hudood) Ordinance, 1979.

120. ' The present incident took place on 8-1-1987, and the appellants were challaned before the Court in April, 1987. The Ordinance No Il of 1987 was promulgated on 23-7-1987 when the case was pending before the Sessions Judge, Karachi West. The above Ordinance was repealed by Act XV of 1987, which came into force on 16th November, 1987. At that time the case was pending before the learned IIIrd Additional Sessions Judge, Karachi West. The Governor of Sind was pleased to transfer the above case to the Special Court for Speedy Trials, Karachi, vide Notification No, VII (104) SOJ/88, dated 27th June, 1988. So far as the Ordinance II of 1987 was concerned, section 2(c) defined the `offence' as under-- "Offence' means an offence punishable under any law for the time being in force which, in the opinion of the Government is sensational in character or shocking to public morality or has led to public outrage or created panic or atmosphere of fear or anxiety amongst the public or a section thereof; ' According to section 3, the above Ordinance, was to override other laws. Section 5 specified the jurisdiction of the Special Court which is reproduced as follows:-- "5- Jurisdiction of Special Court.-- (1) If the Government is of the opinion that a case relating to an offence which has been registered should in the public interest be tried and decided speedily, the Government may order that the case shall be tried by a Special Court.

(2) If the Government is of the opinion that a case relating to an offence which is pending before any Court should in the public interest be tried and decided speedily, the Government may, by order in writing, transfer the case for trial to a Special Court.

(3) As soon as an order is made under subsection (1) or subsection (2) in respect of any case, no Court other than the Special Court referred to in such order shall have any jurisdiction or entertain any proceedings in respect thereof.

(4) The Special Court may convict and sentence an accused for any offence of which he may be found guilty.

(5) The Special Court shall have, in respect of a case triable by it, all the powers which a High Court has in relation to a trial before it under the Code, including the powers relating to the grant or cancellation of bail or recall or amendment of any orders, and shall, subject to this Ordinance, as nearly as may be, follow the procedure provided in the Code for such trial.

121. ' Whereas section 2(c) of Act XV of 1987 which repeals the Ordinance II of 1987, defines 'Offence' as under:-- "Offence means an offence specified in the Schedule which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or any anxiety amongst the public or a section thereof; ' As far as jurisdiction of Special Court was concerned, there was no change in section 5 and the provisions relating to jurisdiction of Special Court are in pari materia with the provisions of section 5 of Ordinance II of 1987."

122. ' In the schedule of the repealing Act the following offences are mentioned while referring to section 2(c), namely, sections 302, 303, 396, 397 and any other offence committed in the course of the same transaction in which any of the said offences is committed, or in addition to or in combination with such offence.

123. ' Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant Shaukat Hayat, in support of his contentions has relied upon the following cases:-

(1) Ashique Ali v. Superintendent, District Jail, Sheikhupura and another 1988 P Cr. L J 2395; wherein the accused were sent up under sections 336, 436, 148, 149, P.P.C. And section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, VI of 1979. The Governor of Punjab was pleased to transfer the said case for trial to Punjab Special Court for Speedy Trial vide notification dated 15-10- 1987 when Act XV of 1987 was in force, a petition under section 491, Cr.P.C. Was filed before the High Court challenging the transfer of the case to the Special Court on the ground that the offence under section 17 of Ordinance VI of 1979 was triable by Sessions Court only, and the jurisdiction of other Courts was barred under Article 203-G of the Constitution of Pakistan. That the offences were not scheduled offences under Act XV of 1987, and that a long adjournment was granted by the trial Court when adjournment of the case beyond two days was illegal. The learned Judge who heard the petition repelled the contentions and it was held that the Notification entrusting the present case fror trial to Special Court will continue to have effect under repealing section 15 of the Act and it could not be said that the Special Court was left with no jurisdiction to continue with the trial.

124. Secondly, under Ordinance II of 1987, all cases under all offences could be tried by Special Court.

125. Thirdly the Ordinance or the Act was to operate notwithstanding any other law already in force. It was further observed that Article 203-G, relied upon by the learned counsel only bars jurisdiction of Courts in respect of any matter within the power and jurisdiction of Federal Shariat Court. That Act No, VX of 1979 was not just a procedural law. It was substantive Act creating Courts of special jurisdiction and the petition was dismissed.

126. ' The facts of the above case are totally different, as the case was referred to Special Court while Ordinance II of 1987 was in force. Moreover, the learned Judge who decided the above petition has not specifically considered the nature of offences covered by the Schedule and the definition of offence as given in section 2(c) of the Act XV of 1987. Additionally it has been observed by the learned Judge that the jurisdiction was barred under Article 203-G only in respect of any matter within the power and jurisdiction of Federal Shariat Court.

(2) Ghulam Abbas alias Muhammad Abbas v. The State 1988 P Cr. L J 275 wherein the, appellant was tried and convicted under section 302, P.P.C. And section 14 of Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979. The appellant filed an appeal before the High Court where it was contended while relying upon the case of Muhammad Abbas and another v. The State reported as 1984 SCMR 129; that the appeal would lie before the Federal Shariat Court and not before the High Court. The contention was accepted and the appeal before the High Court was held to be not maintainable. However, it was further observed that:-- "We find that the learned Additional Sessions Judge was quite competent to try both the offences under section 302, P.P.C. As well as under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, with which the appellant was charged."

127. ' The facts of the above case are also distinguishable and only show that the appeal against conviction under Ordinance VI of 1979 and also under section 302, P.P.C. Had to be filed before the Federal Shariat Court, and the point raised by Mr. Azizullah K. Shaikh was not at all in issue in the above case.

(3) Nazar Muhammad and another v. Abdul Ghafoor and 3 others PLD 1987 Quetta 141; wherein the question of repeal of Evidence Act by Qanun-eShahadat and applicability of its provisions to the Criminal Law (Special Provisions) Ordinance II of 1968; came up before the High Court for interpretation and it was held that:- "Since it was promulgated later and having overriding provisions over all the other laws on this subject it would prevail over the relevant provisions of Criminal Law (Special Provisions) of Ordinance II of 1968."

128. ' There is no cavil with the principles laid down in the above decision. Since the present case was referred to the Special Court after Act XV of 1987, came into force and it being substantive Act creating Courts of Special Jurisdiction and had specifically repealed the Ordinance II of 1987, the case was covered as defined in the schedule of the Act XV of 1987.

(4) Muhammad Abbas and another v. The State 1984 SCMR 129 wherein the appellants were convicted by the Court of Session under section 302/34, P.P.C. And section 18 read with section 19 of the Zina (Enforcement of Hudood) Ordinance VII of 1979. Their appeal before the Federal Shariat Court was dismissed and, therefore, they filed petition for Leave to appeal before the Supreme Court wherein apart from other grounds it was contended that since the appellants were not challaned under section 18 of the Ordinance, the Court could not have charged the petitioners with an offence under Ordinance. The contention was repelled and it was observed that:-- "The narration of facts in the report submitted under section 173, Cr.P.C. Disclosed an offence falling under section 18 of the Ordinance and, therefore, even if the police officer had not mentioned that section in his report, the trial Court was competent to frame charge under section 18 of the Ordinance also. It was further observed that the Court of Session could alongwith an offence under Ordinance also try offences under other laws committed in the same transaction could, in view of section 235, Cr.P.C. And the first proviso to section 20(i) of the Ordinance and the petition was dismissed."

129. ' Mr. K.M. Nadeem, learned AA.-G. Appearing for the State has relied upon the case of Muhammad Yaqoob v. Government of Baluchistan and others PLD 1989 SC 13; wherein the power to transfer the case to Special Court under section 5 of the Special Courts for Speedy Trials Act, 1987 was challenged, and their Lordships were pleased to observe that:-- "While looking to-the definition of the word 'offence' in clause 2(c) which means 'an offence specified in the schedule' which in the opinion of the Government, is gruesome, brutal, sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof."

130. ' It was further observed:-- "That in the context of the above definition, an offence cannot be an offence specified in the Schedule unless it conforms to the guideline mentioned above. It is the commission of this offence which the Special Court can take cognizance of, under section 7 of the Act."

131. ' The view taken by the Honourable Supreme Court in the above case goes to show that a case which can be referred to the Special Court must conform to the definition of offence as given in clause (c) of section 2 and the Schedule given in the Act.

132. ' Admittedly, the learned Special Judge being Sessions Judge could try `offences' under Zina (Enforcement of Hudood) Ordinance, 1979 and Act XV of 1987 was a substantive Act creating Courts of special jurisdiction will override other laws by virtue of section 3 of the Act.

133. From the above discussion and legal position, it is clear that the `offences' under Zina (Enforcement of Hudood) Ordinance, 1979, committed in the present case were covered by the definition of 'offence' as defined in clause (c) of section 2 of the Act and the Schedule of the above Act. We are, therefore, of the considered view that the learned Special Judge had jurisdiction to try appellants under section 302, P.P.C.And sections 10(3) and 11 of Zina (Enforcement of Hudood) Ordinance, 1979 and the objection raised by Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant Shaukat Hayat was untenable.

134. ' Since there are different pieces of evidence against two appellants, we would like to consider the evidence produced against each appellant separately. As far as appellant Shaukat Hayat is concerned, the prosecution has relied upon the following pieces of evidence against him.

(1) Recovery of white Charade car owned by appellant Shaukat Hayat which is alleged to have been used in the -crime, and recovery of black Moti alongwith pieces of broken bangles, blood- stained seat covers, mat, underlay etc. On 31-1-1987, and the expert report regarding matching of black Moti Article L', with Bundas Article 'W-2', bangle pieces recovered from the dead body of Salma Jabeen with the bangle pieces recovered from white Charade car of appellant Shaukat Hayat.

(2) The evidence of Muhammad Saleem P.W.5 and Abdul Rehman P.W.6, employees of Appolo Service Station, Muhammadali Housing Society, Karachi, regarding service of white Charade car of appellant Shaukat Hayat carried on by them on the following day of incident.

(3) The evidence of P.W. Sabir regarding welding of hole in the roof of white Charade car belonging to appellant Shaukat Hayat.

(4) The recovery of crime bullet from the head of victim Salma Jabeen during post-mortem examination, production of unlicensed pistol by appellant Shaukat Hayat from his flat before the police on 8-2-1987, while he was under arrest, and the report of ballistic expert that the bullet recovered from the head of Salma Jabeen was fired from the said pistol.

(5) The pointing out of a place near Mehran Petrol Pump situated on National Highway Landhi, on 8-2-1987, by appellant and production of blood-stained clothes and pair of sandals etc. Of deceased girls from the bushes.

(6) The absence of appellant Shaukat Hayat on 8th, 9th and 10th of February, 1987, from the Police Training School, Shandadpur, the place where he was on training at the time of incident.

(7) The evidence of ballistic expert regarding the matching of moulds of tyre marks of white Charade car with the moulds of tyre marks found at the place where the dead bodies of victims Salma and Asma Jabeen were lying.

(8) The medical evidence. Since the first, second and third pieces of evidence are interconnected, therefore, the same are taken up together. The F.I.R. Exh.7-A lodged by Afaq Rahman shows that his father S. Masoom All and his sisters Azra aged 30 years, Asma Jabeen 24 years and Selma Jabeen aged 19 years had gone to attend marriage. At 11-00 or 11-15 p.m. While he was watching Television, suddenly he heard a gunshot report in the street along with the cries of the women. He came out and people of Mohalla also came in the street. While they were just discussing about the shot and cries of the women, his neighbor Roshan informed him that the dead body of his father was lying on the road. He and other persons present there went to that place and found the dead body of his father lying along with the roadside bus stop, Gulshan-e-Usman, Syed Sibt-e-Hasan Naqvi, Ata Muhammad, Chowkidar, Mushtaq and other persons informed him that white Charade car took a turn in the street of his house speedily and went towards the bus stop Gulshan-e-Usman No,2, and all of a sudden an unknown person sitting in the car threw away his father. The car then went away in high speed and from the car cries of women viz. 'save' were heard. He then made inquiries from Al-Imran Marriage Hall and came to know that his father had left for the home alongwith Asma Jabeen and Salma Jabeen at 10-00 or 10-30 p.m. The above F.I.R. Shows that a white Charade car was used in the abduction of the three deceased. Later on, the dead bodies of Asma Jabeen and Salma Jabeen were also found by one Ghulam Muhammad Soomro who gave necessary information at Police Post Bhains Colony, and the Incharge made such entry in the Roznamcha which has been produced as Exh.17. However, the police could not get any clue about assailants and, therefore, the people started protesting and processions were taken out. Therefore, Inspector- General Police entrusted the investigation of this case to Inspector Muhammad Khan of C.IA. Who deputed parties and made inquiries from various police stations to find out whether a similar incident had taken place earlier within the jurisdiction of any police station. During these inquiries he came to know that F.I.R. No, 458 of 1986 was registered under sections 365, 392/34, P.P.C. Read with section 17(3), (Enforcement of Hudood) Ordinance against unknown persons at New Karachi.

135. That in that incident also culprits had picked up ladies, girls and small children in a white Charade car from near marriage hall situated in Karimabad area, Karachi, and they had dropped the male and children from the car within the jurisdiction of New Town Police Station and took away the ladies and girls in the said car. Inspector Muhammad Khan got the investigation of the above case transferred to himself and while carrying on investigation of that case, he came to know about description of the assailants and, therefore, he sent for appellant Shaukat Hayat due to suspicion in that case. In the meanwhile, complainant party also came to know that Inspector Muhammad Khan had also been asked by Inspector-General to investigate the above case, therefore, the complainant Afaq Rahman alongwith Anis and Muhammad Sherif went to C.IA. Centre on 31-101987.

136. While they were still there appellant Shaukat Hayat came to the C.IA. Centre at about 11-30 a.m. In his own white Charade car bearing No, 233-035. He was arrested by Inspector Muhammad Khan due to suspicion and his car was also secured and such Mashirnama was prepared in presence of Muhammad Sharif and Anis regarding arrest and recovery of car. Since the complainant knew that a white Charade car was used in the abduction and murder of his father and sisters, he became suspicious and asked Inspector Muhammad Khan to search the car. They saw the car from inside and found that blood stains were available on the back seat cover, mats and underlay. There was a hole through and through in the rear seat, and there was also a mark of bullet shot on the roof of the car. Inspector Muhammad Khan also recovered Curfew Pass No, 475; in the name of appellant Shaukat Hayat and Vehicle No, KAB-1656 issued by D.M.L.A. Badin, National Identity Card, Police Identity Card issued by S.P. Badin, name plate of the accused and key chain with two keys. They lifted the mats of car by raising the seat and discovered broken pieces of bangles and black Moti of Bunda and piece of eyeglass. The complainant disclosed that the same were of his sisters.

137. Inspector Muhammad Khan secured the same under Mashirnama. On this point complainant Afaq Rahman is fully supported by Muhammad Sharif P.W. 2, who has also produced Mashirnama of arrest and recovery as Exh.11, and Inspector Muhammad Khan P.W.34.

138. ' There is also evidence of Dr. Amanullah, that while conducting postmortem of deceased Asma Jabeen he had recovered two broken bangles (Chooris), two artificial ear-rings, one artificial ring and other articles. In addition to the above evidence, there is evidence of Haji Ghulam Muhammad P.W.24 (Mashir) that the police had secured pieces of bangles and glass of spectacles from the place where the dead bodies of Asma Jabeen and Salma Jabeen were D lying. He has produced the Mashirnama as Exh.71. The pieces of broken bangles, eye glass and other articles recovered from the bodies of two girls by Dr. Amanullah, Inspector Muhammad Khan, and Sub-Inspector Malik Muhammad Hussain from the place where the dead bodies were lying were identified by Jamila Khatoon niece of the deceased P.W.11, Azra Abbasi, P.W.26 and Afaq Rahman P.W.1. The identification test was held by Mr. Abdul Ghafoor A.C.M Karachi, P.W.10 and memo. Of identification has been produced as Exh.38. P.W. Jamila Khatoon and Azra Abbasi and Afaq Rahman had picked up the articles and identified them that the same were of the deceased girls.

139. ' We have also evidence of Muhammad Saleem P.W.5 and Abdul Rahman P.W.6 (employees of Appolo Service Station) from where appellant Shaukat Hayat had got the white Charade car serviced on 9-1-1987 at 9-00 a.m. P.W. Muhammad Saleem has deposed that the appellant had brought his car Article `R' at Apollo Service Station, Karachi. He had also been coming to their service station earlier for getting his white Charade car serviced and, therefore, he was known to them. According to him the seat covers of car were stained with blood and the blood was available on the rear seat on its back. He had washed the same. He inquired from the appellant about the blood stains on the seat and the appellant told him that there was an accident on Super Highway and he had to shift the victim ladies from the place of incident to Jinnah Hospital. The appellant used to come in his uniform. He had carried on the service of car. The record is maintained at the service station and cash memo. Is issued at the time of receiving service charges. Abdul Rahman P.W.6 Manager Appolo Service Station has deposed that after a car is serviced at their service station they issue cash memo. To the person who takes the delivery of the car. However, they do not mention the name of the owner of the car but the cash memo. Is issued against the number of the car. On 9-1-1987 he had issued a bill in respect of a car bearing No, KAB1656. The said car was provided oil and oil filter in addition to service thereof. The total bill in respect of the same was Rs,208. Thereafter they had issued two more bills for two other cars on the same day, he has produced the book containing the cash memo. (office copy of the original) issued to the person who had brought the car No, KAB-1656 as Exh.26. Number of the cash memo. Was 867. He had produced a book Exh.26, before the police which was secured by police under Mashirnama and he has produced the Mashirnama as Exh.27. Then there is evidence of Muhammad Sabir P.W.20.

140. According to him, he carries on work of welding at Latifabad No,2, Hyderabad. About one year before, one Masood had brought a car to him; appellant Shaukat Hayat was with him, the F colour of the car was white. Masood had informed him that Shaukat was Inspector in Police and he had to close the hole of gun available in his car. After hammering he placed Lapi on the hole and closed the same. He could not identify that Shaukat because he had seen him for about 10/15 minutes.

141. According to him, the car Article 'R' available within the Court premises was the same of which he had filled the hole. We have also evidence of A.S.I. Haji Muhammad Ahsan P.W.28, who had taken Inspector Shamsul Islam to the place from where the dead bodies of victim girls were found and had taken photos of tyre marks, D.S.P. Mr. Abdul Rauf P.W.30, in whose presence moulds of the tire marks of the car were taken, Inspector Shamsul Islam P.W.31 who had taken the photos, and ballistic expert Mouladad who had examined the article recovered from the dead bodies and from the car of appellant Shaukat Hayat, holes in the rear seat and the roof of the car and the mounds of the tyres of the car from the place trom where the dead bodies of victim girls were recovered and molds of the tire of articles '12' (white Charade car). According to him, the hole in the roof of ragazine cloth was caused due to firing of bullet the direction of which was from forward to up forward, the welded hole in the roof of white Charade car article 'It' was corresponding with the said hole. A piece of ragtime cloth was pasted over the hole mark 'E' for the sake of camouflage, the hole in the back support of rear seat of Article 'R' was caused due to firing of bullet. The hole in the right portion of doggy cover of the Article 'R' was corresponding with the hole marked as 'A' contained in the back support of the rear seat. The tire marks which were taken from Chaukundi graveyard were in agreement with the characteristic of subsequent mounds of the tires of Article 'R'. The bangle pieces recoved from Article 'R' were of the same material as that of the pieces of bangles recovered from the dead bodies. He has produced report regarding points in respect of tyre marks on the basis of which he has given his opinion as Exh.132, comparison chart regarding preserved/questioned tyre marks and subsequent tyre marks of article 'R' as Exh.133. He has also produced the points on the basis of which he has given his opinion regarding pieces of bangles as Exh.134, and the plastic piece which he had found from the car alleged to be the piece of the butt of the revolver belonging to co-accused Muhammad Nawaz Tanoli as Exh.135 and its seizure memo, as Exh.137. He has also produced his positive opinion that crime bullet recovered by Dr. Amanullah was fired from the pistol produced by the appellant Shaukat Hayat as Exh.139.

142. ' It has been contended by Mr. Azizullah K. Shaikh learned counsel appearing for appellant Shaukat Hayat that complainant Afaq Rahman has made improvements in his evidence in Court and that there were omissions and contradictions in the evidence of witnesses, and therefore, no reliance could be placed on their evidence. In support of his contention he has relied upon 1971 P Cr. L J 229 and PLD 1977 SC 557. That statement of P.W. Saleezn before the police shows that seat covers were washed and, therefore, the presence of blood stains found on seat covers and carpet on 31-1-1987 was unbelievable. That P.W. Saleem does not say that there was any hole in the back seat. That if the car was serviced, then the pieces of bangles and Moti could not have been left. He has further contended that the evidence of P.W. Sabir was in conflict with the evidence of P.W. Masood and, therefore, no reliance could be placed on the evidence of P.W. Sabir. He has further contended that the evidence of ballistic expert was absurd, unreliable and was procured by Inspector Muhainmad Khan, as according to him there was much difference in the size and thickness of the bangle pieces recovered from near Chaukundi graveyard and those which are alleged to have been recovered from the car. That the Mashirnama Exh.7 produced by P.W. Ghulam Muhammad goes a long way to show that there were no distinct marks of tyres and, therefore, the report of ballistic expeit Mouladad that the moulds of tyre marks found near Chukundi graveyard and that of article were in agreement is unreliable.

143. ' The evidence of Muhammad Sabir P.W.20 is straightforward, natural and reliable. It is supported by the fact that even now the hole, which according to him, was hammered and filled with lapi by him is still present in th roof of the car. As far as evidence of P.W. Masood was concerned, it appears to be absurd, unreliable but does not affect veracity of evidence of Muhammad Sabir in any way, inasmuch as according to Masood Ahmad, appellant Shaukat Hayat had gone to him in a white Charade car about two years before and had told him that mudguard of his car had collided with some buffaloes and that he should take him to some deter, he then took him to Sabir denter.

144. However, the evidence of this witness was recorded on 2-8-1988, and, therefore, even if Shaukat Hayat had taken some car to him for getting its mudguard dented it was much earlier that the day of incident. He does not say, that Shaukat Hayat had taken car article 'IV to him for denting and, therefore, it might be some other car which was taken to him earlier which is clear from the fact that while inspecting the car at the request of appellant's counsel, we did not find any denting work done so far the mudguard was concerned. P.W. Masood even does not say that Muhammad Sabir denter who has been examined as P.W.20 was the same person to whom he had taken Shaukat Hayat alongwith his car and, therefore, we are satisfied that the evidence of P.W. Muhammad Sabir is natural and reliable and is not affected by the evidence of P.W. Masood. P.W. Muhammad Sabir has clearly stated in Court that the car article `R' standing in the Court premises was the same car.

145. We also found that some denting work had been done on the roof of the car. The witness appears to be independent, straightforward and had no reason to give false evidence, which is clear from the fact that he candidly stated in the Court that he cannot identify that Shaukat because he had seen him hardly for about 10/15 minutes. He had no reason to give false evidence and no motive has been suggested to him in cross-examination for giving false evidence. If he was to give false evidence, then it was easy for him to say in the Court that appellant Shaukat Hayat present in Court was the person who had brought the car article 'R' to him for denting. The only suggestion made to him in cross-examination was that he and Inspector Younus were detained by police for five days and that he and his brother were threatened by police, in case they do not depose in Court, they will be sent to Jail, which has been denied by him.

146. ' As far as evidence of complainant Afaqur Rehman was concerned, it has been criticised by the learned counsel appearing for the appellant, on the ground that he has made improvements in the evidence and, therefore, no reliance could be placed on his evidence. Complainant Afaqur Rahman is not an eye-witness of the incident. The version given by him in the F.I.R. Clearly shows that on receipt of information from P.W. Roshan when he went along with others to bus stop Gulshan-e-Usman, where the dead body of his father was lying, he was informed by Syed Sibt-e- Hasan Naqvi, Ata Muhammad and others that a white colour Charade car took turn in the street of his house speedily went towards the bus stop, and all of a sudden an unknown person sitting in the car threw away his father. This is the evidence which he has repeated in the Court. As far as recovery of white Charade car, broken pieces of bangles, black Moti and other articles were concerned, they were recovered on 31st January, 1986, and, therefore, the said facts could not be mentioned in the F.I.R. By him. No doubt the situation was such that the complainant could not have recollected at the time of lodging of F.I.R. As to what articles the girls were having on their person and, therefore, if there were some omissions made by him in the F.I.R. And when the articles were discovered and he identified them, it could not be said that he had made improvements or developments in his evidence. Moreover, he has produced two eyesight cards before the police in order to support his version regarding the eye glass pieces. Likewise, non-mentioning of the fact, in his statement before Inspector Muhammad Khan that he had come to know through newspaper that investigation of this case had been entrusted to C.I.A. Was not such which could affect his evidence. The recovery of black Moti, broken pieces of bangles, bloodstained seat covers and other articles from white Charade car Article 'R' is specifically mentioned in the Mashirnama prepared by Inspector Muhammad Khan in Crime No,458/86; and its contents are fully supported by Mashir Muhammad Sharif and Inspector Muhammad Khan. Therefore, any omission in 161, Cr.P.C.

147. Statement of complainant Afaqur Rahman could not be a ground to reject his testimony. Especially when the deposition of Afaqur Rahman shows that he was subjected to a lengthy and grueling cross-examination for about 6 days.

148. ' The case of Roshan and 4 others v. The State PLD 1977 SC 557 relied upon by Mr. Azizullah K.

149. Shaikh, learned counsel appearing for appellant Shaukat Hayat is of no help to the appellant inasmuch as in the above reported case too, it was observed that:- "The accused were brought to trial 3-1/2 years after the incident. At the trial rustic witnesses including Mst. Rahmat were subjected to a lengthy and grueling cross-examination extending over period ranging from two to four days each, by counsel who has acquired a reputation for employing brow-beating tactics on witnesses and was criticized for this practice in a case which came before the Court some years back. Under the circumstances, it should come as no surprise to discover that the cross-examination of the prosecution witnesses brought out certain contradictions between statements made by them at the trial and the statements recorded earlier by the committing Magistrate and the police."

150. ' With utmost respect, the above decision is of no help to the appellant as in the present case also the complainant was examined after one and half years and he was subjected to a lengthy cross- examination and therefore, some contradictions were bound to be there.

151. ' In the case of Qaim Din and 7 others 1971 P Cr. L J 229 an eye-witness had attempted to explain the injuries received by the accused saying that the same were caused by the deceased Rahmat which fact was neither stated before the police nor it was in conformity with other evidence and, therefore, it was observed that:-- "The witness had made crude attempt to improve his evidence at the trial to support the prosecution case and, therefore, he could not be considered as an independent witness."

152. ' However, the facts of the above case are distinguishable and are not applicable to the facts of the present case. Inasmuch as the evidence of witness in the reported case was on one hand inconsistent with his previous statement and on the other hand it was held to be unreliable in view of the circumstances of the case. As far as the present case is concerned, the evidence of Afaqur Rahman is supported by Mashir Muhammad Sharif, Inspector Muhammad Khan, and the Mashirnama of recovery. Even Saiful Islam P.W.4 who had lodged initial report at Police Station New Karachi has supported the prosecution to the extent that a white cat was used in the crime.

153. ' The next contention of Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant that when Muhammad Saleem had carried on service of the car and washed the same, neither there could be blood stains on the seat covers nor the black Moti and pieces of bangles could be left inside the car is untenable. Inasmuch as it is a matter of common experience that while carrying on service of a car at Service Station, the seat covers are never washed. As far as the presence of black Moti and pieces of bangles were concerned, the evidence of Mashir Muhammad Sharif P.W.2 clearly shows that 2/3 pieces of broken bangles were recovered from beneath/side of front seat, and on removal of woollen type flooring from underneath rear seat bangle pieces, two or three pieces of glass of spectacles were recovered. He has further stated in his evidence (at page 168 of paper book) that a black Moti was also recovered from beneath the rear seat. The flooring was also blood stained. The seat covers were stained with some blood stains, which appeared to have been washed. In this connection it will be appropriate to mention the observations made by the learned trial Judge which appear at page 794 of the paper book that:-- "In this regard it be clarified that during inspection of Appolo Service Station within the vision of Mr. Sarwar Advocate for both the accused, as per inspection notes Exh.164, after dropping a head of match stick on the floor of the car the same was got cleaned by P.W.5 with pressure pump. In this process full dust was removed from the floor of the car but the head of the match stick remained available on the floor at different position inside the car. Thus, black Moti and pieces of bangles like the head of match stick could also remain on the floor inside the car despite cleaning the floor inside the car with air pressure pump. It would be pertinent to note that, the black Moti and pieces of bangles etc. Were recovered from beneath the rear seat which place as per admission made during cross-examination by P.W.5 was not cleaned by him. Therefore, I am constrained to believe beyond reasonable doubt, the recoveries in question."

154. ' It will be appropriate to refer to the case of Khushi Muhammad v. The State 1983 SCMR 697 relied upon by Mr. Abdul Wahab Khan, learned counsel appearing for the complainant; wherein it was observed by their Lordships of the Supreme Court that:- "An F.I.R. Is never intended or considered to be a document describing the minor or incidental details of incident in question."

155. ' Adverting to the next contention of Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant that Mashir Muhammad Sharif was a member of the same union of which complainant Afaqur Rahman was a member and, therefore, he was an interested witness. There is no doubt that complainant Afaqur Rahman and Mashir Muhammad Sharif were members of the same bank union and belonged to the same locality. However, this fact alone could not make them as interested witnesses. There was no reason or even suggestion in cross- examination from the defence that they were hostile to the accused/appellant or they had any reason to falsely implicate him. The Mashir being a neighbour of the complainant it was natural that he went along with complainant to C.I.A. Centre to make inquiries about the result of investigation, and therefore, their evidence could be brushed aside, especially when it is corroborated by circumstances.

156. ' It was next contended by Mr. Azizullah K. Shaikh that the evidence of Dr. Amanullah shows that the ear-rings found on the person of deceased girl were neither broken nor any Moti was found from Larees missing. No doubt, Dr. Amanullah has stated in cross-examination that he had in all secured four earrings from both the dead bodies and none of the ear-rings was broken. Now one piece of one pair of ear-ring is not complete as the same is broken because one black Moti is missing from the Article 'W-2'. However, in examination-in-chief, he has stated that:-- "I see the pair of ear-rings containing Motis, this pair is the same, which I found on the dead body at the time of autopsy. I produce it as Exh.W-2."

157. ' In reply to a question, put by the Court, he has stated that:-- "I had not counted the black Motis of each ear-ring at the time of sealing the same after recovery thereof from the dead body."

158. ' From the above evidence of Dr. Amanullah, it is certain that he did not care to mark the missing of the one of the Motis from one of the ear-rings and his statement in Court that the ear-rings were complete at the time of recovery by him and no Moti was missing, appears to be afterthought and has been made in order to oblige the appellant, and therefore, no reliance could be placed on this part of the statement.

159. In addition to the above evidence produced by the prosecution, there is evidence that white Charade car, Article R' recovered by the police from the appellant belonged to him, and was purchased by him in the name of his wife in the year 1986. There is also evidence that the appellant had been driving this car under fictitious number KAV 1656 of Badin and this car number also appeared in the curfew pass Exh 9-A, issued in his name and secured by police from his car on 31- 1-1987.

160. ' There is also evidence of P.W. Sabir that the appellant had taken his white Charade car to him and got the hole of the roof of the car welded while the evidence of Mouladad Ballistic Expert shows that there was bullet hole in the rear seat of the car and there was also bullet hole in the ragzine under the roof of the car which had been welded later on. Even when we inspected the car, it appeared that the roof of the car was welded by putting Lappi after hammering, for which-the appellant had offered no explanation. In view of the above discussion we are of the considered view that the above three pieces of evidence have been proved by the prosecution against the appellant beyond reasonable doubt.

161. ' Next piece of evidence is the recovery of crime bullet from the head of deceased Salma Jabeen, production of unlicensed pistol by Shaukat Hayat and positive report of Ballistic expert showing that the said bullet was fired from the pistol produced by the appellant. Evidence of Dr. Amanullah P.W.21, shows that while conducting post-mortem on the dead body of deceased Salma Jabeen, he found a bullet lodged in the right occipital lobe which was recovered and sealed by him and that the same was handed over to the police. On the point of production of pistol we have evidence of Mashir Rustam Ali P.W.3 and Inspector Muhammad Khan. Mashir Rustam Ali has fully supported the production of pistol by appellant Shaukat Hayat. According to him the accused had first led the Mashirs and police to the bushes adjacent to the Petrol Pump situated on National Highway near Qadafi Town and produced two black Chadars, ladies clothes and one pair of ladies sandals etc. The above articles were stained with blood and the same were secured by police, sealed in his presence after preparing Mashirnama, and the Mashirnama has been produced by him as Exh.15. Thereafter appellant led them to his house in Gulshan-e-Iqbal and produced a pistol with six live bullets before police, which were secured by police alongwith black cover, sealed in their presence and such Mashirnama was prepared, which has been produced as Exh.16. He was subjected to lengthy and searching cross-examination by the learned defence counsel but his evidence has not been shaken in any way. His evidence appears to be straightforward, natural and reliable and there is no reason to disbelieve him. He is further supported by Inspector Muhammad Khan, on the point of production and recovery. The evidence of Ballistic Expert Mouladad Khan, who has also produced the report, shows that the bullet found by Dr. Amanullah was fired from the pistol in question. Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant, has contended that the Mashir Rustam All was neighbor and partner with A.S.I. Ehsan who was assisting Inspector Muhammad Khan in investigation and he was produced by Ehsan. He has further contended that no effort was made to pick up independent Mashirs. That the house was lying open, there were other inmates of the house, and, therefore, it was not in exclusive possession of appellant Shaukat Hayat. The criticism by Mr. Azizullah K. Shaikh regarding evidence of above witness is unwarranted inasmuch as on one hand Mashir Rustam Ali was picked up while he was passing by side of the Petrol Pump and on the other hand he has denied the suggestion that he was partner of A.S.I. Ehsan. A suggestion was made to the witness in cross-examination that P.W.

162. A.S.I. Ehsan also hails from the same Village situated in Tehsil Jaranwala to which he belongs but it was denied. No other evidence was produced to show that Mashir Rustam Ali was in any way connected with A.S.I. Ehsan. As far as recovery of pistol was concerned, Mashir has frankly admitted that there were inmates of the house, and when the police entered the flat they went behind Pardah. He did not sec brother and nephews of the appellant/accused inside the flat.

163. ' Mr. Azizullah K. Shaikh, learned counsel appearing for appellant Shaukat Hayat has further contended that it was doubtful whether the bullet recovered from the head of deceased Salma Jabeen was the same which was sent to the Ballistic Expert, as Dr. Amanullah was not definite whether the bullet in Court was the same. However, Dr. Amanullah has stated in Court that the bullet which has now come out from the sealed packet having the seal of this Court over another seal which cannot be read, most probably was the same bullet which was taken out from the dead body. There is note from the Court that: (this bullet has come out, from the parcel which was wrapped in a paper having words 'crime bullet' thereon. The other bullet which was taken out from another packet of articles T, T-1 and T-2 which bear seal of the Court is not the bullet which he had recovered from the dead body. There is note from the Court that: The parcel was opened on previous date in the Court at the time when after opening the sealed packet articles recovered therefrom were brought on record of this Court as Articles T, T-1, and T-2). However, the witness was not cross-examined by the learned counsel, as far as the recovery of bullet was concerned and, therefore, there is nothing on record to show that the bullet in question was not recovered from the head of the deceased. Even it was not suggested to the Medical Officer in cross-examination that the bullet in Court was a different bullet than the one he had recovered from the head of Mst.

164. Salma Jabeen. Ballistic Expert Mouladad has given reasons for his conclusion that the bullet in question was fired from the pistol which is said to have been produced by appellant Shaukat Hayat. Adverting to the contention of Mr. Azizullah K. Shaikh that there were other inmates in the house and the same was not in exclusive possession of appellant Shaukat Hayat. There is no evidence that apart from appellant any other male member was living in the apartment, from where appellant Shaukat Hayat had produced the unlicensed pistol. The fact that the pistol was lying concealed in a drawer and was taken out by appellant Shaukat Hayat himself goes a long way to show that it was kept by him, and he was the only person knowing about presence of the pistol. Moreover, he had led the police and Mashir to the place of recovery saying tha he will produce the crime weapon/pistol, and therefore, to the extent hi, statement which ultimately led to discovery of pistol was admissible and could used as piecde of evidence against him. From the above discussion, we are satisfie that the crime bullet recovered from the head of deceased Mst.

165. Salma Jabeen wa fired from the pistol produced by appellant Shaukat Hayat.

166. ' Next piece of evidence against the appellant is that of pointing out o place near Mehran Petrol Pump and production of blood-stained Chadars, blood stained clothes of the victim girls, and the pair of sandals etc. From the bushes. 0 this point, we have evidence of Mashir Rustam Ali, Inspector Muhammad Kha and the report of Chemical Examiner Exh.147. The clothes and candles wer identified by complainant Afaqur Rahman, Mst. Jameela and Mst. Azra in th identification test, which was held through Mr. Abdul Ghafoor, A.C.M. P.W. 10 and the report of chemical examiner shows that the articles were stained with blood. The evidence of Mr. Abdul Ghafoor shows that the articles were staine with blood. The evidence of Mr. Abdul Ghafoor further shows that he ha( received the above articles in a sealed parcel and he had held identification test the same through Mst. Jameela and Mst. Azra, who identified all the articles is presence, while Afaqur Rahman identified all the articles except the broken pieces of bangles. After holding identification test he had prepared such Mashirnama and resealed the bundles. He has produced the Mashirnama regarding resealing and identification as Exh.37, and Exh.38. Of course, he has admitted in cross- examination that he did not mix the articles in question with the identical articles because blood- stained articles of the same nature could not be made available. However, the fact remains that the complainant Afaqur Rahman, Mst. Azra and Mst. Jameela were close relations of the two deceased girls and they must have been seeing the deceased girls wearing these articles and, therefore, they could certainly identify the same. Moreover, they had no reason to falsely claim that those articles belonged to the two deceased girls nor they had any reason to implicate the appellant which is further clear from the fact that Afaqur Rahman failed to identify broken pieces of bangles.

167. ' It is also a matter of common experience that psychologically the ladies take keen interest in the clothes and ornaments worn by their close relations and observe them so minutely that there can be no difficulty for them to identify the same if need be and, therefore, there is no reason to disbelieve the evidence of Mst. Azra and Mst. Jamila regarding the identity of the above articles.

168. ' It was contended by Mr. Azizullah Shaikh learned counsel appearing for the appellant that mere pointing out of the place from where some articles are taken out or produced will not incriminate the appellant unless there is some statement made before the actual discovery as envisaged by Article 40 of Qanoon-e-Shahadat. In support of his contention the learned counsel has relied upon the case of Allah Ditta v. The State PLD 1958 (W.P.) Pesh. 1 wherein it was held that: 'The A.S.I. Does not disclose the exact circumstances under which the appellant was brought to the scene of occurrence nor does his statement give any indication as to what the appellant meant when he simply pointed out his finger to this bush. The omission becomes almost important when we find that the articles were not buried underground or carefully concealed but were simply `lying in the bush'. There is no cavil with the above proposition but in the present case the evidence of Inspector Muhammad Khan shows that the arrested accused Shaukat Hayat during the course of interrogation led the police party to the National Highway. There from the bushes standing in the neighbourhood of Mehran Petrol Pump of P.B.S. He took out blood-stained clothes and pair of blood-stained sandals and produced the same before police on 8-2-1987. He secured and sealed the same under the Mashirnama Exh.15. He has further deposed that 'on the same day the accused Shaukat Hayat while in custody, volunteered to produce the incriminating weapon. He led the police party to his flat situated in Regency Apartments, Gulshan-e-Iqbal, Block No,4, from where he produced a strap pistol No, 812005 made in Spain alongwith a black holster and six live bullets thereof. I secured the same under a Mashirnama in presence of Mashirs Rustam Ali and Zafar Khan under Exh.16'. The above evidence of inspector Muhammad Khan clearly shows that it was not a case of simple pointing out a place but the appellant had also made a statement which had led to discovery and, therefore, the contention of Mr. Azizullah Shaikh is untenable.

169. ' It was further contended by Mr. Azizullah Shaikh, learned counsel appearing for the appellant that the Mashir Rustam Ali was brought from a distance of 20/35 miles and, that the flat from where the revolver was secured was not in exclusive possession of the appellant and, therefore, no reliance could be placed on the recoveries. We are afraid the contention is untenable. The evidence of Mashir Rustam Ali shows that while he was returning from Steel Mill and had come to the Petrol Pump situated at National Highway near Qazafi Town he was picked up by police for being made Mashir. In cross-examination he has deposed that he resides in Bavapat which is near Old Haji Camp. On that day he had to meet the Sub-Engineer in connection with the construction of his house in Malir B-7 Bilal Town. The Sub-Engineer resides in the quarter of Steel Mill. He has admitted in cross-examination that he had remained in police service but has denied a suggestion that he was involved in a murder case and was removed from police department on account of his involvement in the murder case. It was also suggested to him in cross-examination that P.W. A.S.I.

170. Ahsan is a Benami partner in his Ration Shop but this was also denied by the witness.

171. ' From the above evidence of Mashir Rustam Ali it is clear that he happened to be at the Petrol Pump by chance and he was picked up from there. After discovery of clothes etc. By appellant Shaukat Hayat, he led the police to his house and produced the revolver. Nothing was brought out in cross-examination to show that either he was interested in the prosecution or hostile to the appellant. His respectability was also not challenged except that a question was put to him that he was involved in a murder case and, therefore, his services were terminated from the police department. In the case of Allah Warayo v. The State 1978 P Cr. L J 241 it was observed by a Division Bench of this Court that the respectability of the witness of recovery is more important than the nearness of his residence to the place of search. It was further held that mere fact that acquitted accused were residing with the appellant is of no significance, since the appellant himself had peculier knowledge of the place where the pistol was concealed.

172. ' In the case of Rehmat Ali v. The State 1984 SCMR 109 wherein the High Court had accepted the evidence of recovery of the knife as it was of the opinion that the mere non-examination of the Lambardar or other residents of the locality could not be sufficient to discard this piece of evidence allegedly for the reason that it was not genuine, the Honorable Supreme Court agreed with the observations of the High Court and the evidence of recovery was relied upon and the appeal was dismissed.

173. ' In the case of Balya and others v. The State 1985 SCMR 854 wherein the evidence of recovery witness Bagga was discarded on account of his not being a person of the locality, the Honorable Supreme Court was pleased to observe that there was also no proper reason for excluding the evidence of recovery witness Bagga on account of his not being a person of the locality, said to be a requirement of section 103, Cr.P.C. In the first instance, the applicability of that section to a recovery made at the pointing of an accused was not clearly established. Moreover, the stress under section 103 is rather on the respectability of the witness and if he be found to be respectable, he may not be disbelieved merely because he did not hail from the locality. Nothing had been brought out to detract from the respectability of Bagga as a witness. Therefore, the evidence of recovery witness Bagga was relied upon by the Honorable Supreme Court.

174. ' In view of the above factual as well as legal position we are of the view that although Mashir Rustam Ali did not belong to the locality from where articles were produced but he was definitely a respectable person and, therefore, there is no reason to disbelieve his evidence regarding recoveries.

175. ' Adverting to sixth piece of evidence regarding absence of Shaukat Hayat on 8th, 9th and 10th February, 1987 from Police Training School Shandadpur the prosecution has examined S.I. Sultan Wali Khan who has deposed that he is posted at Police Training School Shandadpur since April, 1987. The Investigating Officer had secured Roznamcha of the Centre/School from him. He was P.T.

176. Inspector at that time. The Roznamcha related to the period commencing from 6-1-1987 to 27-1- 1987. It used to remain in his custody at that time. Appellant Shaukat Hayat was undergoing upper course training at Shandadpur at that time. According to the entry of this Register at Serial No,20 the accused was absent on 8-1-1987 at 8-00 p.m. At the time of roll call. School commences working at 6-00 a.m. And closes after the roll call which takes place at 8-00 p.m. The accused was absent at the roll c411 on 9-1-1987 and on 10-1-1987 as well, as per Entries Nos. 66 and 37. He has produced the Register/Roznamcha containing the entries dated 8-1-1987, 9-1-1987 and 10-1-1987 as Exhs.33 to Ex.35. According to him 25th December, 1986 was the last day of Shaukat Hayat's training in the school but due to emergency duties entire staff which was at the training was retained at the Police Training Centre Shandadpur. On 11-1-1987 when the trainees returned back from emergency/special duty the accused returned with them. Thereafter entire staff of the said trainees were allowed to go to their respective districts for normal duties. The entries Exhs.33, 34 and 35 specifically speak about the absence of the accused from Police Training School, Shandadpur. In cross-examination he has deposed that S.I. Gul Dawood was Line Officer. Since he was on leave, he had acted as Line Officer w,e,f, 31-12-1986 to 14-1-1987. He cannot write in Sindhi.

177. The entries recorded in Roznamcha are in Sindhi language and were recorded by someone else. He had put his signature at the end of Roznamcha. Monitor prepares a statement regarding attendance. He passes on that statement of attendance to Platoon Commander who verifies the correctness of that statement. Thereafter the Drill Inspector physically verifies the correctness of the statement given by the monitor and duly verified by the Platoon Commander. The accused was not given any punishment after he had completed the training on 25th December but he was retained due to special duty. S.I. Gul Dawood was the Line Officer when accused was in training.

178. Principal had called him and verbally directed him to perform the duty of Line Officer as Gul Dawood was granted leave by him for 14 days. Had he been given the charge of Line Officer in writing he would have made such entry. The accused was present on 7-1-1987. The names of other absentees have also been mentioned in entry dated 8-1-1987 (Exh.33). Names of ten absentees including accused Shaukat Hayat have specifically been mentioned. He has denied the suggestion that on 12-2-1987 I.-G. Had asked them to show Shaukat Hayat as absent in the record. He has admitted that V.V.I.P. Duty mentioned at Serial Nos.2 and 3 dated 8-1-1987 related to the duty in respect of the Ambassadors and the Members of the Diplomatic Missions at Sindhri. They had sent 650 police officers/officials for V.V.I.P. Duty who were under training in the school. He has denied a suggestion that accused Shaukat Hayat was amongst those absentees who had gone to V.V.I.P.

179. Duty. He could not say who had recorded the entries of Exhs. 33 to ' Exh.35. However, he stated that the duty list would make it clear as to who was the author of these exhibits. He has denied the suggestion that Gul Dawood had not gone on leave and he declined to make the interpolation in the Roznamcha. He has also denied the suggestion that at the instance of his superiors he has prepared bogus register/Roznamcha.

180. ' The evidence of P.W. Sultan Wali Khan is corroborated by Roznamcha/Register of attendance which shows that the appellant was absent from duty on the above three dates. The only suggestion made to him in cross-examination was that he had kept the entries showing appellant Shaukat Hayat absent at the instance of his superiors which suggestion he has denied. Another suggestion made in cross-examination was that Shaukat Hayat was present on V.V.I.P. Duty at Sindhri on the above dates but this too was denied. It is a matter of record that about 650 persons/police officials had gone to attend V.V.I.P. Duty and if appellant Shaukat Hayat was actually present at Sindhri on V.V.I.P. Duty on the above dates, then he could produce some responsible officer in his defence to prove his statement that he was actually present on V.V.I.P.

181. Duty at Sindhri. On his failure to produce such evidence there is no reason to disbelieve the evidence of P.W. Sultan Wali Khan which is further corroborated by documentary evidence.

182. Moreover, the Roznamcha is maintained on the basis of statement prepared by Monitor, who passes on the said statement of attendance to Platoon Commander who verifies the correctness of the statement. Thereafter the Drill Inspector physically verifies the correctness of the statement.

183. There was no reason for I.-G. Or any other Officer to get false entries kept regarding the absence of appellant Shaukat Hayat at Training School and the suggestion in this regard appears to be absurd and cannot be relied upon in absence of any evidence.

184. ' It was contended by Mr. Azizullah Shaikh, learned counsel appearing for the appellant that P.W.

185. Sultan Wali Khan has failed to produce any written order showing Gul Dawood to be on leave from 30-12-1986 to 4-1-1987 nor there was any entry in the Roznamcha and, therefore, no reliance could be placed on his evidence. He has further contended that entries Exhs.33, 34 and Exh.35 showing haukat Hayat absent were kept by some other person and, therefore no reliance can be placed on the same. Lastly it was contended that the prosecution had failed to produce evidence that Shaukat Hayat had not gone to attend V.V.I.P. Duty and, therefore, no presumption could be raised against the appellant. In support of his third contention reliance was placed on PLD 1977 SC 518.

186. We have considered the contentions raised by the learned counsel for the appellant. As far as first contention is concerned P.W. Sultan Wali Khan has given his explanation that he was given verbal orders to carry on the duties in place of Gul Dawood who had gone on leave. As for as entries Exhs.33, 34 and 35 are concerned, the witness has explained the procedure as to how these entries were kept and the fact that they were verified by two Officers after the entries were kept goes a long way to show that the entries were correctly kept. As far as the third contention of Mr. Azizullah K. Shaikh is concerned, decision in Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515; relied upon by the learned counsel does support his contention wherein it was held:-- 'Needless to emphasise that in spite of section 106 of Evidence Act, in a criminal case, the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused."

187. ' There is no cavil with the principle enunciated in the above reported case. However, in the present case the prosecution has proved its case through the evidence of P.W. Sultan Wali Khan and Roznamcha/Attendance Register that the appellant was absent on the above three dates. It is the case of the appellant that he was on V.V.I.P. Duty at Sindhri on the above dates and therefore, it was for him to produce evidence in order to show that he was on duty at Sindhri on the above dates. In the case of Khushi Muhammad v. The State 1983 SCMR 697, the case of the accused was; that he was sitting with D.I.-G. At the time of incident, and in the Honourable Supreme Court a grievance was raised that the Investigation Officer did not make any effort to verify this fact, it was observed by their Lordships of the Supreme Court that:-- "When accused has taken plea of alibi the burden is on him to prove the same. He cannot blame the prosecution for failing to prove this plea of alibi for him because it is a settled principle of law that one who raised a special plea must discharge the burden of proving it. If his assertion was correct he would have certainly produced the D.I.-G. As a defence witness specially when it has not been suggested that that Officer was in any way reluctant to appear and depose the truth."

188. From the above discussion we are satisfied that the prosecution has proved beyond reasonable doubt that the appellant Shaukat Hayat was absent from his M duty on the above three dates. He has not produced any evidence in support of his version and, therefore, the same cannot be accepted.

189. ' The next piece of evidence against the appellant is the evidence of matching of molds of tyre marks of white Charade car Article 'R' with the moulds of tire marks found at the place where the dead bodies of victims Salina Jabeen and Asma Jabeen were lying. On this point we have evidence of Haji Muhammad Ehsan, A.S.I. To the effect that on 13-1-1987, the D.S.P., C.I.A. Had given him a letter to be given to the Finger Print Bureau on the basis of which a Mobile Team of Finger Print Bureau came to the place near Chaukundi Graveyard where the wheel marks/tire marks were available. The molds of the tire marks were obtained by the said team in his presence. They had also obtained photographs of tire marks. Again on 8-2-1987 D.S.P., C.I.A. Gave him another letter for the same Finger Print Bureau requesting for obtaining the molds of wheel marks/tire marks of white Charade car Article 'R' after the same was secured from accused Shaukat Hayat. In cross- examination he has admitted that on 13-1-1987 Maqbool. Asif Bajwa, S.H.O. Police Station New Karachi was Investigating Officer of this case. Chaukundi Graveyard was situated within the jurisdiction of Quaidabad Police Station. He has admitted that on 13-11987 the investigation of this case was aot with the C.I.A. Syed Asghar Ali Shah D.S.P. C.I.A. Had handed over to him a. Letter for delivering the same to Forensic Science Laboratory. He has further admitted that on 11-1-1987 he had accompanied D.S.P. Asghar Ali Shah to the place where the dead bodies were said to be lying but the same were already sent to the hospital before the arrival. In his presence D.S.P. Asghar Shah had seen tyre marks at that place on that day. He did not count the tyre marks. He could not give the number of the marks but stated that the same were of one vehicle.. He could not say if those wheel marks were of front tyres or rear tyres. Those marks were by the side of way/road. No Mashirnama was prepared by the D.S.P. On that day. They did not make any arrangement for covering those wheel marks on 11-1-1987. Mould Expert was D.S.P. He did not know his name. He has denied a suggestion that he had purchased a bus from Sitara Hilal Bus Service and P.W. Rustam Ali was driver of that bus. He has also denied that he had provided service of Rustam Ali to Inspector Muhammad Khan.

190. ' There is also evidence of D.S.P. Abdur Rauf, P.W.30 who has been working with Finger Prints Bureau, Criminalistic Division Karachi, for the last 20 years. According to him he had obtained training and specialized knowledge of this subject from the Finger Print Bureau. On 13-1-1987 he had received a letter from D.S.P. C.I.A. Requesting him for picking up of incriminating tyre prints. He alongwith Inspector Shamsul Islam, Inspector Naeem Ahmed and S.I. Ghulam Akbar and their subordinate staff reached Chaukundi Graveyard under the guidance of A.S.I. Ehsan Malik of C.IA. He directed Inspector Shamsul Islam to pick up the prints of wheel/tyre ma rks (moulds) and prepared three moulds of the tyre marks on the spot. Those we re available on Katcha Road and he directed the subordinate staff to find out if there was any other incriminating evidence available on the spot and S.I. Ghul.Am Akbar succeeded in finding out a light green lady sandal. Inspector Sham sul Islam and S.I. Ghulam Akbar prepared their report on the spot regarding recovery of sandal. Moulds were also prepared on the spot. Three photographs of tyre marks were also taken on the spot. On 82- 1988 he received a letter from D.S.P., C.IA. Addressed to A.I.-G. Criminalistic Division to the effect that Car No,233-035 was available at C.IA. Centre and arrangements be made for taking specimen of moulds of tyre marks of the said car. He deputed Inspector Shamsul Islam and S.I. Mouladad for preparation of moulds of the said car. He has produced the said letter as Exh.111. In addition to the above evidence there is evidence of Inspector Shamsul Islam P.W.31. According to him on 13-1-1987 he received a letter Exh.111 through his D.S.P. Directing him to take moulds of the tyre marks of the car near Chaukundi Graveyard. He alongwith D.S.P. And his staff reached near Chaukundi Graveyard and found trye marks there. He took photographs of those tyre marks and also prepared three moulds of the said tyre marks on the spot. He prepared such report in presence of two Mashirs. He handed over the moulds and photographs prepared by him to D.S.P. He has produced the report as Exh.114. He has also produced the photographs of tyre marks. Mashirnama of recovery of sandal and preparation of moulds as Exh.115 to Exh.120. On 8-2-1987 his D.S.P. Directed him to reach C.IA. Centre alongwith Inspector Mouladad. He prepared the photographs of the suspected car. Mouladad prepared the specimen moulds of the tyre marks of the said suspected car. He has produced the same as Exh.121 to Exh.124. According to him these photographs were taken so that in case the mould is broken help can be taken from the same. He has produced the moulds which have been preserved in the sealed box. He has produced the three disputed moulds which were prepared at the Chaukundi Graveyard as Articles A/A, A/B, and A/C. He has also produced the report which he had submitted to the D.S.P. As Exh.125. The evidence of P.W. Shamsul Islam appears to be straightforward, natural and reliable. The same has not been shaken in any way in spite of lengthy cross-examination. He had no reason to give false evidence against the appellant. His evidence is fully supported by Ballistic Expert Mouladad who has produced his opinion as Exh.108 and report as Exh.132 which gives the reasons for his opinion regarding similarity of the tyre marks found near Chaukundi Graveyard and the tyre marks of Charade car Article R'.

191. The learned counsel appearing for the appellant Shaukat Hayat has assailed the evidence regarding the comparison of tyre marks on the ground that the Mashirnama Exh.71 shows that due to passing of other vehicles it was difficult to identify the tyre marks. No doubt the Mashirnama Exh.71 produced by Haji Ghulam Muhammad P.W. 24 shows that `there are of course wheel prints of the vehicle on the road but due to passing of other vehicles it is difficult to identify these marks.

192. There are neither other significant marks nor any fmger prints or any other thing'. However, the evidence of Haji Muhammad Ahsan, A.S.I., shows that these wheel marks were by the side of road.

193. The evidence of D.S.P. Abdul Rauf P.W.30 also shows that these wheel marks were available on Katcha Rasti/Road and he directed the subordinate staff to prepare the moulds of the same. It has come on record that the dead bodies of the victim girls were not found lying on the road but on the roadside and, therefore, there is no reason to disbelieve D.S.P. Abdur Rauf and A.S.I. Haji Muhammad Ahsan specially when they were experts. In view of the above discussion we are satisfied that the tyre marks which were found at the place from where the two dead bodies of the victim girls were found near Chaukundi Graveyard and of which moulds were taken by Inspector Shamsul Islam and others were those of the white Charade car Article R' as opined by the Ballistic Expert Mouladad.

194. ' As far as medical evidence is concerned, it has been discussed in the earlier part of this judgment at pages 53 to 60.

195. ' As far as the defence plea of appellant Shaukat Hayat regarding enmity with Inspector Muhammad Khan was concerned, the appellant does not claim to have any relationship with Nazir Hussain for whose son Asif, he claims to have approached Inspector Muhammad Khan. Even Haji Nazir Hussain has not been produced in evidence to show that he had actually approached the appellant to request Inspector Muhammad Khan for the release of his son Asif. The appellant has also not produced any evidence to show that Inspector Muhammad Khan approached him to bring about settlement between him and Haji Muhammad Nazir Hussain. In this regard suggestion made to Inspector Muhammad Khan in cross-examination has been denied by him. Moreover, this was a murder case, where three murders had taken place and Inspector Muhammad Khan would not dare to implicate an innocent person only in order to take revenge from him. It is a matter of record that barring one or two witnesses the remaining are independent persons and are not subordinates of Inspector Muhammad Khan, and therefore, to say that all the witnesses had given false evidence at the instance of Inspector Muhammad Khan was absurd, unnatural and could not be believed. No doubt there are certain cases pending against Inspector Muhammad Khan but the same are still subjudice. The copies of applications dated 21-2-1987 and 5-3-1987 produced by the appellant as Annexures D-17 and D-18 were made after his arrest and after engaging an Advocate, and no evidence has been produced to show that the allegations made in applications that the appellant was arrested on 27-1-1987 was correct. In view of the above discussion, we are of the view that appellant had failed to prove that Inspector Muhammad Khan had any enmity with him, and therefore, he was falsely implicated.

196. ' Adverting to the objection of Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant, regarding investigation carried on by Inspector Muhammad Khan, it is a matter of common experience that whenever an incident takes place which is sensational in nature, number of police officers are associated with the investigation in order to find out the real culprits. In the present case it has been stated by Inspector Muhammad Khan that when no clue of culprits was available for about a week, Mr. Iftikhar Rashid, D.I.-G. Karachi and S.P. C.IA. Altaf Ali Khan directed him to associate himself with the investigation of this case, and therefore, he approached various police stations in Karachi to find out the clue of any other identical incident and ultimately he found that F.I.R. No, 458 of 1986 was registered under sections 365, 392, 34, P.P.C. Read with section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, against unknown persons at Police.

197. Station Karachi, and while going through the case papers of the said crime, he succeeded in ascertaining the clue regarding the description of the culprits of that case 'and, therefore, he called Sub-Inspector Shaukat Hayat to appear before him on 31-11987 and he was arrested and the incriminating articles of this case were recovered from the said car. He has further stated that on 3-2-1987, the investigation of this case was entrusted to him officially through the letter which he has produced as Exh.143. It will be worthwhile to mention here that Mr. Azizullah K. Shaikh has also objected to admissibility of Mashirnama Exh.11 as according to him since this Mashirnama was prepared in Crime No, 458 of 1986, it could not be produced in this case. The objection is untenable because the articles which were secured under Mashirnama Exh.11 (of course, during the course of investigation of another crime were the property of this case and, therefore, it could not be said that the Mashirnama was inadmissible or irrelevant. The contents of Road Certificate dated 2-2- 1987, produced as Exh.143, show that further investigation of the crime, registered as F.I.R. No, 22 of 1987 at Police Station North Karachi was transferred under the orders of the D.I.-G. Police Karachi, to Asghar All Shah Deputy S.P. C.I.A. Karachi who transferred the case for further investigation to his subordinate Inspector Muhammad Khan of C.I.A. Karachi (South), and therefore, we are of the considered view that no illegality was committed by Inspector Muhammad Khan, while conducting the investigation of this case.

198. ' Moreover, any irregularity in the investigation will not vitiate the trial. In this connection reliance is placed on Messrs Nawab Sons Lab. Limited, Lahore v. S.P. Federal Investigation Agency and another PLD 1976 Lah. 813; wherein it was observed that:-- "So far the investigation into the case being made by Ch. Nadir Khan is concerned, no objection can he taken to it, because even if an investigation is not ultimately found to be in strict compliance with the provisions of law it does not necessarily follow that the subsequent trial shall stand vitiated."

199. ' In another case reported as Niranjan Singh and others v. The State of Uttar Pradesh AIR 1957 SC 142; it was observed by their Lordships of Supreme Court of India that:-- "The Criminal Procedure Code in laying down that the omissions or irregularities which either vitiate the proceedings or not does not anywhere specifically say that a mistake committed by a Police Officer during the course of the investigation can be said to be an illegality or irregularity.

200. Investigation is certainly not an inquiry or trial before the Court and the fact that there is no specific provision either way in Chapter XLV with respect to omissions or mistakes committed during the course of investigation except with regard to the holding of an inquest is, in our opinion a sufficient indication that the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial"

201. ' In the case of Muhammad Ashique v. The Martial Law Administrator Zone 'C' 1980 P Cr. L J 97 it was observed by a Division Bench of this Court that:- "If cognizance is taken on police report even though the same may be vitiated on account of infraction of any provision relating to investigation, the result of the trial which follows it cannot be set aside unless the illegality in investigation could be shown to have resulted in a grave miscarriage of justice. It is well-settled that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial."

202. ' In view of the above discussion, we do not find that any illegality was committed by Inspector Muhammad Khan in investigation of the case and the contention of Mr. Azizullah K. Shaikh is untenable.

203. In view of the above discussion we are of the considered view that the prosecution has proved its case beyond reasonable doubt against appellant Shaukat Hayat that he abducted deceased S. Masoom Ali and his two daughters on the pretext of giving them lift upto their house, and committed their murder, therefore, the appellant was rightly convicted under section 302, P.P.C.

204. And section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. We, do not find any reason to interfere with the judgment convicting the appellant under section 302 and section 13 of Zina (Enforcement of Hudood) Ordinance, 1979, and his appeal is accordingly dismissed. The reference made by the learned Special Judge is accepted and the sentence of death is confirmed.

205. ' However, as far as conviction under section 10(3) of Offence of Zina (Enforcement of Hudood)

206. Ordinance, 1979 is concerned, there is sufficient evidence to show that Mst. Asma Jabeen and Mst.

207. Salma Jabeen were subjected to rape. There is strong presumption but no sufficient evidence that it was appellant Shaukat Hayat who committed rape on them, and therefore, presumption however, strong cannot take place of proof. Even Mr. K.M. Nadeem, learned A.A.-G. Appearing for State and Mr. Abdul Wahab, learned counsel appearing for the complainant have not supported his conviction on this charge. Therefore, while extending benefit of doubt the conviction of appellant Shaukat Hayat under section 10(3) of Offence of Zina (Enforcement of Hudood)

208. Ordinance, 1979 is set aside and he is acquitted of the above charge.

209. ' Adverting to the case of appellant Muhammad Nawaz Tanoli, the only piece of evidence available against him is production of his licensed revolver by his brother Ghulam Muhammad on 4-3-1987.

210. According to the Mashirnama Exh.93 the handle of revolver was broken from inside, but it does not show that the plastic at the butt of the revolver was broken near the eye of the butt. That when the car article 'R' was sent to Ballistic Expert Mouladad, while examining the car he found dim black colour plastic piece affixed on the part of the rear seat and the same was secured by him in presence of Mashir Iftikhar Ahmed and Inspector Sahmsul Islam, he has produced Mashirnama as Exh.137. Admittedly appellant Muhammad Nawaz Tanoli was arrested on 22-2-1987, while the revolver was produced by his brother on 4th March, 1987. The Mashirnama of recovery Exh.93 is silent about the broken piece of plastic piece at the butt of the revolver. The car was recovered by Inspector Muhammad Khan on 31-1-1987, and the above plastic piece was not available in the car when it was searched and recovered by Inspector Muhammad Khan. The above plastic was found in the car on 9-3-1987, and therefore, it cannot be said that this piece of plastic was broken from the licensed revolver of Muhammad Nawaz Tanoli at or during the time of incident. There is no other evidence direct or circumstantial to connect the appellant Muhammad Nawaz Tanoli with the above crime. Mr. K.M. Nadeem, learned A.A.-G. Appearing for the State and Mr. Abdul Wahab Khan, learned counsel appearing for the complainant have also not supported conviction of appellant Muhammad Nawaz Tanoli.

211. ' In view of the above discussion, we are of the considered view that no case was made out against appellant Muhammad Nawaz Tanoli and, therefore, while extending benefit of doubt to him his appeal is allowed, conviction and sentences are set aside and he is acquitted of the charges. He shall be set at liberty forthwith if not required in any other case. The reference made by the learned Special Judge for confirmation of his sentences is rejected.