' As the above-titled appeals arise out of the single judgment of the District Criminal Court, Mirpur passed on 7th of August, 1998, we propose to dispose of the same by this single judgment, whereby appellants Pervaiz Akhtar and Basharat were convicted under section 354-A, A.P.C. And sentenced to imprisonment for life. Pervaiz Akhtar was also sentenced to 'Hakumat-eAdal' of Rs,10,000, whereas Fazarat appellant was sentenced to the period already undergone in judicial lock-up.
2. The appellant Pervaiz Akhtar and two others have filed this appeal against the impugned order of District Criminal Court, Mirpur, dated 7-8-1998 to set aside the same and to pass an order of acquittal, whereas Mst. Amir Begum, the complainant also presented an appeal to enhance the sentence of the appellants-accused and to convert the same into the death sentence.
3. The facts precisely stated are that Mst. Amir Begum, complainant (P.W.1) lodged F.I.R. On 13th August, 1994 at 9-45 a.m. At Police Station Islam Garh. It was alleged therein that at 9-00 a.m. She was cutting grass with her son, Muhammad Waqas (P.W.2) and Maqsood Begum (P.W.3) from the land adjacent to a water tank when Pervaiz, Basharat and Fazarat came over-there and started abusing her. Fazarat pressed his pistol at the temple of Waqas while Basharat who was armed with a pistol and Pervaiz Akhtar who was armed with a dagger started beating her with fists and kicks and threw her on the ground. Pervaiz stripped her of her 'Shalwar' and outraged her. During stripping her of her 'Shalwar' then she kept her hands in her front, Pervaiz attacked upon her hand with a dagger, resultantly, her finger got injured. Mst. Maqsood Begum came to her rescue who was witnessing the occurrence.
4. The motive of the occurrence is stated to be the previous grouse and grievance of the accused.
5. At this report a case under sections 354, 506 and 34, P.C. Read with section 15, Islamic Penal Laws Act, 1974, was registered by Syed Zahoor Hussain Gillani, S.-I. (P.W.11), S.H.O. Police Station Islam Garh, who handed over the investigation of the case to Abdul Qayum Khan (P.W.10) Head Constable Police which was later on taken over by S.H.O. Himself on 17-8-1998. The accused persons were apprehended during the investigation and after completion of the investigation a challan was presented under section 354-A instead of 354 alongwith other offences already mentioned above. The accused appellants denied their guilt in their statements under section 242, Cr.P.C. The prosecution produced Mst. Amir Begum (P.W.1), Muhammad Waqas (P.W.2), Mst.
Maqsood Begum (P.W.3) (as eye-witnesses of the occurrence), Adalat Khan (P.W.5), Muhammad Rasib Khan (P.W.6), Wilayat Khan (P.W.7), Raja Pervaiz Khan (P.W.8), Abdul Qayum, Head Constable Police (P.W.10) and Syed Zahoor Hussain Gillani, S.-I. Police (P.W.11) to prove its case. The accused in their statements under section 342 of Cr.P.C. Denied the allegations levelled against them and desired to produce the defence evidence. In their defence the accused examined Mst. Deewan Begum (P.W.4) as their witness. The trial Court concluded the trial and after hearing the arguments of the parties passed the impugned order which is subject-matter of these two appeals.
6. Mr. Abdul Majeed Mallick, the learned counsel for the appellants-accused vehemently contended that a false case has been fabricated against the accused and the trial Court fell in error by passing an order of conviction. According to him place of occurrence and recovery are fictitious and the prosecution failed to prove its case beyond any reasonable shadow of doubt. He argued that the prosecution also failed to prove that the shirt of the complainant P.1 was bloodstained and in this respect reports of the Chemical Examiner and the Serologist have not been produced. The learned counsel pointed out that the prosecution witnesses have made wilful improvements which amount to material contradictions. He agitated that P.Ws. Are not only interested and closely related to the complainant but they are inimical to the accused. The learned counsel submitted that the prosecution case suffers from material illegalities and infirmities and in such type of cases standard of evidence must be very high, self-speaking and most reliable. The learned counsel maintained that there is no iota of corroboration in the present case which was necessary to prove the prosecution version. He further contended that the trial Court passed the impugned order in a sentimental manner and it did not adhere to the admitted principles of the appreciation of the evidence. The learned counsel also pointed out that in statement of the accused under section 342, Cr.P.C. The recoveries were not put to the accused and in such state of affairs the evidence of recovery has lost its importance. He seriously criticized the site plan Exh. P.G.
And argued that it does not transpire from point No,1 of the site-plan as to whether the complainant had cut the grass. The grass and sickles were also not taken into possession by the Investigating Officer. The learned counsel further argued that the place of occurrence is surrounded by thickly populated areas and according to the prosecution the occurrence took place in broad day light but despite of abusing and hue and cry by the complainant not a single independent person witnessed the occurrence. According to the learned counsel a hypothetical story was concocted against the accused. He also maintained that in F.I.R. It has not been mentioned that the accused took away Shalwar' of the complainant with them and Mst. Deewan Begum (P.W.4) was also not cited as a witness in F.I.R. The learned counsel emphasised that according to the prosecution story shirt and 'Shalwar' of the complainant was not cut or damaged which fact alone is sufficient to prove that the accused have been falsely implicated in the case because of the enmity The learned counsel also contended that Muhammad Waqas (P.W.2) is a young man, a student of class ten and the real son of the complainant but he did not make any struggle to defend his mother at the time of occurrence and stood still like a stone. He also criticized the alleged injury of the complainant and argued that if the accused would have attacked the complainant with dagger than instead of one finger of the complainant whole hand of the complainant would have been injured. He further submitted that Dr. Aftab Ahmed Mir (P.W.9), Medical Officer was not produced to prove the injury of the complainant, therefore, the oral testimony of the eyewitnesses were not corroborated by the medical evidence. He further contended that according to the prosecution story the appellants have been attacking complainant with fists and kicks and the whole body of the complainant had become dark blue but this fact was also not proved by the prosecution. It was also contended by the learned counsel that according to the prosecution the place of occurrence is situated near a water tank but Mst.
Amir Begum (P.W.1) denied the existence of ar.y water tank in her statement before the trial Court.
He further argued that if the fact of injury of the finger and cutting of the string of the complainant is ousted from the story then whole of the prosecution case falls down upon earth. He criticized the recovery evidence and argued that according to the complainant and her witnesses a dagger and a pistol were used in the occurrence but instead of dagger a knife while instead of 2 pistols, one revolver was recovered by the police. Therefore, the recoveries effected from the accused are also doubtful especially when Mst. Amir Begum (P.W.1) has explained in her statement that she certainly knows the difference between a dagger and a knife because knife has one sharp edge whereas a dagger has two sharp edges. He also argued that it is not possible and probable that if a lady is assaulted and outraged by the accused but her son does not make any struggle and stands still.
He does not accompany her mother to the police station. He is well read but does not write the F.I.R.
His statement is not recorded on the day of occurrence but on the next day. All these facts and circumstances when coupled with the previous grouse and grievance of the complainant it becomes quite evident that a false case was fabricated against the accused. The learned counsel maintained that Mst. Deewan Begum, a defence witness who is not related to the either party, has also falsified the prosecution story and did not admit the presence of Maqsood Begum (P.W.3) and Muhammad Waqas (P.W.2) on the site of occurrence. He finally submitted that the evidence of interested witnesses could not be relied upon in absence of strong corroborative evidence which is missing in the instant case. In support of his contentions he referred the following case-law:---
(i) PLD 1963 SC 17, (ii) PLD 1963 SC 25.
7. While controverting the arguments of the learned counsel for the appellants-accused, Mr. Muhammad Reaz Alam, the learned counsel for the complainant fervently argued that F.I.R. Was promptly lodged and the accused were nominated therein. He contended that the prosecution case stood proved beyond any reasonable shadow of doubt by ocular version and knife and pistol have also been recovered on the instance of the accused. He also submitted that Fazarat accused facilitated the other accused and provided them an opportunity for the completion of the offence.
He maintained that impartial person do not come forward for the evidence therefore, the related witnesses are produced to prove the occurrence and the evidence of interested witnesses cannot be discarded if their statements ring true. He pointed out that although Mst. Deewan Begum (P.W.4) was produced as defence witness but she did not refute the occurrence. The learned counsel submitted that the complainant is 60 years old lady whose modesty was outraged and her 'Shalwar' was stripped of and she was made naked. Therefore, the impugned order was passed in a legal fashion and instead of acquittal of the accused their life imprisonment and the imprisonment undergone in judicial lock-up may be converted into the death sentence.
8. Mr. Muhammad Mushtaq Ch., the learned Additional Advocate-General owned and supported the arguments advanced by the learned counsel for the complainant.
9. After hearing the respective contentions of the learned counsel of the parties and perusing the record I am not inclined to believe the prosecution story. In the present case all P. Ws. Are interested and inter-related to the complainant as well as inimical to the accused party.
Muhammad Waqas (P.W.2) is real son of Mst. Amir Begum, complainant, while Mst. Maqsood Begum (P.W.3) is wife of Raja Wilayat, who is the real brother of the complainant. Muhammad Ras ib Khan (P.W.6) and Walayat Khan (P.W.7) are the real brothers of the complainant whereas Adalat Khan (P.W.5) is real cousin of the complainant whose daughter is also daughter-in-law of the complainant. Raja Parvaiz Khan (P.W.8) is real nephew of the complainant. Thus, in instant case not a single independent or disinterested witness has been produced by the prosecution to prove its case.
10. I am also conscious of the fact that the testimony of an interested witness cannot be outrightly discarded on .The basis of relationship if it rings true and for the abundant caution further corroboration is required. It is the consistent view of the Supreme Court of Azad Kashmir and Pakistan that the Court may rely upon the testimony of an interested witness if it is convincing, natural and truthful in the context of the facts of the case. However as a matter of prudence the Courts insist upon the corroboration by independent piece of evidence, from unimpeachable source not already tainted with doubts. A relationship simpliciter between a witness and a deceased does not make him an interested witness but if the defence shows that the witness had motive to implicate the accused falsely then the testimony of such interested witness cannot be relied upon. In the light of the above enunciated principle now I take up the brief resume of the prosecution evidence. Mst. Amir Begum (P.W.1) according to the prosecution story presented the written F.I.R. To the police station on 13-8-1994 at 9-45 a.m. While occurrence allegedly took place at 9-00 a.m. But this fact does not find any corroboration even by the statement of Mst. Amir Begum who deposed before the Court that she indited the F.I.R. In the office of the police station on the direction of some one. The 'relevant portions of her statement are referred as under:-- {{URDU TEXT}} ' Sher" further deposed that:- 4 b {{URDU TEXT}}
11. It appears from the above statement of the complainant that firstly she reported the matter to the police station orally and after the instruction of the police officials and preliminary enquiry F.I.R.
Was prepared and indited in the police station after consultations and deliberations. It was mentioned in F.I.R. That complainant was cutting grass from the land adjacent to the water tank but this fact was also refuted by the complainant in her statement where she deposed that she does not know about any water tank rather she was cutting the grass nearby a shrine but the shrine was not shown in the site-plan Exh. P.G. In these circumstances the place of occurrence becomes doubtful from the statement of the complainant. The name of Mst. Deewan Begum as prosecution witness does not appear in F.I.R. And F.I.R. Did not disclose as to whether complainant went to cut the grass from the land of Deewan Begum at her instance but in her statement before the Court a major improvement was made by the complainant and she deposed that Deewan Begum asked her to accompany her to cut the grass from her land and she was cutting the grass from her land when the incident took place. She also deposed before the Court that accused picked up her 'Shalwar', waved it and asked her that where his sons have gone but these facts have not been mentioned in the F.I.R. A close scrutiny of the statement of the complainant reveals that the major improvements have been made by the complainant during the trial which amounts to material contradictions.
12. It is also the case of the prosecution that allegation against Fazarat accused could not be proved and a pistol was not recovered from him. In this respect the statement of Syed Zahoor Hussain Gillani (P.W.11) can be referred whereupon he deposed that:-
13. {{URDU TEXT}} ' The complainant stated before the Court during the occurrence Fazarat pressed his pistol on the temple of Muhammad Waqas. Thus, this fact changes the story of the prosecution and casts heavy doubt upon it.
14. She also stated that the inhabitants of the village witnessed the occurrence from the roof tops of their houses. She also named Sulman, Riasat and Shaukat as witnesses of the occurrence but amongst them not a single person was produced by the prosecution in support of its story. The complainant also deposed the fact that she had cut the grass with sickles but the prosecution did not effect the recovery of the grass or the sickles.
15. Furthermore the existence of the grass or sickles was not mentioned in the site plan. Exh. P.G. Site Plan does not show any water tank as stated in F.I.R. By the complainant or any shrine situated nearby the place of occurrence. It is pertinent to note that the site-plan Exh. P.G., does not disclose the date of its preparation thus, reflects adversely upon the prosecution story.
16. Another important factor which was not mentioned in F.I.R. Is that, the accused took away the Shalwar of the complainant and she remained naked as stated by her in the Court.
17. It is also the testimony of the complainant that because of the kicks of the accused upon her naked body, her chest, back and thighs became dark-blue and these dark-blue signs were shown to the Doctor but this fact does not find support from any medical evidence especially when she was medically examined within half an hour.
18. She also stated that she remained one hour at the spot and then went to her house. According to the prosecution story the occurrence took place at 9-00 a.m. And according to the complainant she stayed one hour at the site of the occurrence then went home and then to the police station where she was asked to produce a written report which she managed to get indited by some one.
It was also deposed by the complainant that she went to the hospital after twelve 0' clock. If F.I.R.
Was lodged at 9-45 a.m. Then what she has been doing in police station till 12-0' Clock. All these facts create a definite doubt. Thus, in these circumstances it is not possible to lodge F.I.R. At 9-45 a.m. At police station which is also one and half kilometres away from the scene of occurrence. This fact does not appeal to a common mind and the exact time of lodgement of F.I.R. Has not been explained by the prosecution. Mst. Amir Begum (P.W.1) has also admitted in her deposition that enmity existed with the accused because of the way {{URDU TEXT}}.
18. Mst. Maqsood Begum (P.W.3) also admitted the fact that she and the complainant were angry with the accused because of the grievance of the way. The complainant party want to get way from the courtyard of the house of the sister of the accused which was not allowed to them. She also stated that the accused came at the scene of occurrence through the way of water tank but Amir Begum (P.W.1) does not admit the existence of any water tank on the spot. She also deposed that so many persons witnessed the occurrence. It was also admitted by her that she was directed by Gulbahar and Ilyas, the sons of the complainant to record her statement against their enemies.
Mst. Maqsood Begum (P.W.3) did not corroborate Mst. Amir Begum (P.W.1) on the point that Fazarat accused pressed the pistol on the temple of Muhammad Waqas (P.W.2). She merely stated that Fazarat accused was also armed with the pistol but according td prosecution case it was not proved during investigation that Fazarat was armed with a pistol, as mentioned above. The other two material and important facts of the prosecution story were also not supported by Mst.
Maqsood Begum (P.W.3). These are that :---(i) she did not state that the accused picked up and waved the Shalwar of the complainant and that (ii) she also did not depose that the accused took away the Shalwar of Mst. Deewan Begum (P.W.1) with them.
19. Raja Muhammad Waqas (P.W.2) testified that all the three accused came on the scene of occurrence through the way of water tank but the existence of water tank on the spot was denied by the complainant herself. He also stated that Fazarat accused pressed the pistol upon his temple but this fact was not corroborated by Mst. Maqsood Begum (P.W.3) and it is also the prosecution case that it was not proved during the investigation that Fazarat was armed with a pistol. The complainant and Mst. Maqsood Begum (P.W.3) did not state this fact but it was deposed by Muhammad Waqas (P.W.2) that Fazarat accused waved the 'Shalwar' of the complainant in the air and started dancing and asked her mother about presence of her sons and after dancing the accused left scene of occurrence. It was also not deposed by Mst. Maqsood Begum (P.W.3) that Mst. Amir Begum (P.W.1) wrapped 'Chadar' around her body as it was testified by Raja Muhammad Waqas (P.W.2). It is pertinent to note that Raja Muhammad Waqas (P.W.2) did not specifically mention that the accused took away Shalwar' of the complainant with them. It is significant to note that after such type of alleged insult of her mother, he did not accompany her mother to the police station, did not write F.I.R. And did not record his statement on the day of occurrence. It will also be pertinent to note here that according to him, Fazarat accused pressed his pistol upon his temple but Fazarat accused is also a student and in such state of affairs no struggle was made by Muhammad Waqas (P.W.2) to help his mother at the scene of occurrence and he stood still like a mile stone, does not appeal to a common mind. He further deposed that he did not see the Shalwar' of her mother, thus, he cannot tell whether the 'Shalwar' was torn out or not but he stated that the shirt was not torn out. It is also admitted on his part like complainant Mst. Maqsood Begum (P.W.3) that the accused had closed their way.
20. Adalat Khan (P.W.5) stated the factum of recovery of shirt P.1, Shalwar P.2 and a knife P.3.
Shalwar and knife were not shown to him in the Court but he stated that prosecution showed him the shirt and 'Shalwar' before the Court. A perusal of his statement reveals that he is not telling truth because of the double relationship with the complainant and an enmity with the accused. He also deposed that he has stated in his examination-in-chief that 'Shalwar' P.2 and knife P.3 were taken into possession in his presence but this fact does not find any place in his examination-in-chief and a note has also been recorded by the trial Court in this respect. He himself admits the relationship with the complainant and the animosity with the accused. He changed his version about recovery of shirt P.1 in his statement and failed to state as to whether the shirt P.1 was handed over to the police by Mst. Amir Begum (P.W.1) or by his son. He further deposed that Mst. Amir Begum (P.W.1) sustained injuries because of falling down except of the finger. He also stated that the deposition made by him in the Court is not correct rather his statement under section 161 of Cr.P.C. Recorded by police is correct. Muhammad Rasib Khan (P.W.6) and Willayat Khan (P.W.7) are real brothers of trie complainant while Muhammad Pervaiz (P.W.8) is red nephew of the complainant. It will not be out of place to mention here that Adalat Khan (P.W.5) resides in village Danna, Tehsil Samahni, District Bhimber while Rasib Khan and Muhammad Pervaiz belong to Tariq Abad and Willyat Khan resides at Islam Garh. It was stated by Adalat Khan (P.W.5) that shirt P.1 was handed over to police by a child which was sent by Gulbhar to fetch the shirt from the house of the complainant but Raja Abdul Qayum, A.S.-I. Police (P.W.10) deposed that shirt P.1 was taken into possession in the hospital.
21. It shall usefully be stated that according to the prosecution story Pervaiz Akhtar accused was armed with a dagger while accused Basharat and Fazarat were having pistols with them. In report under section 173, Cr.P.C. It was submitted that a dagger was recovered on the pointation of Pervaiz Akhtar accused while .32 bore revolver was recovered from Basharat accused F.I.R. Exh. P.A. Speaks twice that Pervaiz Akhtar accused was armed with a dagger and it is also mentioned in site-plan Exh. P.G. That Pervaiz Akhtar accused was having a dagger with him who cut string of the 'Shalwar' of complainant with the dagger but according to the recovery memo. Exh. P.D. a knife P.3 was recovered from the accused Pervaiz Akhtar instead of a dagger and instead of a pistol, a .32 bore revolver P.4 was I ecovered from Basharat accused vide recovery memo. Exh. P.E. But despite of these infirmities it was again asked by the accused in their statements under section 242, Cr.P.C.
That Pervaiz Akhtar accused was armed with dagger and Basharat and Fazarat accused were armed with pistols. In this context when Mst. Amir Begum (P.W.1) appeared in the Court and stated that Pervaiz Akhtar accused was armed with dagger while Basharat and Fazarat accused were having pistols in their hands. She explained in the cross-examination that she knows differerence between dagger and a knife. According to her, a dagger has two sharp-edges while a knife has one sharp-edge. She was certain that Pervaiz Akhtar accused was armed with a dagger but the, trial Court recorded a note about dagger P.3 that it has only one sharp-edge. Mst. Maqsood Begum (P.W.3) has also deposed that Pervaiz Akhtar was armed with a dagger and other accused were having pistols in their hands but Raja Muhammad Waqas stated that Basharat accused was having a revolver and Pervaiz Akhtar accused was armed with a dagger. Adalat Khan (P.W.5) and Rasib Khan (P.W.6) witnesses of recovery speak about recovery of Knife P.3 instead of a dagger while Willayat Khan (P.W.7) and Muhammad Pervaiz (P.W.8) stated that a revolver P.4, was recovered from Basharat accused. Raja Abdul Qayum, A.S.-I. Police (P.W.10) stated that a knife was recovered from Pervaiz Akhtar accused and he does not speak about the dagger, whereas Syed Zahoor Hussain Gilani (P.W.11) deposed that .32 bore revolver was recovered from Basharat accused and not a pistol. In these circumstances the recovery evidence is shrouded in mistery which cannot be relied upon and prosecution itself is not sure whether a dagger was used in the occurrence or a knife or a revolver or a pistol. The recovery of shirt P.1 loses its value because it has not been proved by any report of Chemical Examiner and Serologist as to whether shirt P.1 was blood-stained or not. The alleged injury of complainant was also not proved by the prosecution because medico-legal report was not proved by Dr. Aftab Ahmad Mir (P.W.9). If at all for the sake of justice the medico-legal report may be taken into consideration it shows an incise wound of 2 c.m.
On ring finger of right hand of the complainant. The nature of injury is simple. It will be appropriate to note here that according to the facts and circumstances of the case if the accused Pervaiz Akhtar was armed with a dagger and he with the help of other accused Basharat and Fazarat wanted to cut the string of the 'Shalwar' of the complainant and when the complainant kept her hands in front of her 'Shalwar' then the dagger must have severely injured all the fingers of both of her hands. Such type of injury which has no depth and is superficial and simple in nature can be described as an artificial one inflicted by friendly hands. Even such injury can be inflicted by a nail.
It will be pertinent to note that a dagger was allegedly used to cut string of the Shalwar of the complainant but during the occurrence when the complainant was making struggle and Mst.
Maqsood Begum (P.W.3) and Mst. Deewan Begum (P.W.4) were also trying to rescue the complainant, the Shalwar or the shirt of the complainant should have some signs of cut and it is not possible that only string of the Shalwar was made target without any minor cut to the Shalwar or shirt of the complainant.
22. It is also relevant to mention here that the prosecution witnesses have stated that the whole body of the complainant became dark-blue because of kicks of the accused-persons but Dr. Aftab Ahmed Mir did not describe any abrasion or dark-blue signs on the body of the complainant except an incise wound in her report as described above, especially when after half an hour of the alleged occurrence Mst. Amir Begum (P.W.1) was medically examined. The injury form prepared by the police Exh. P.C.C. Does not speak of any dark-blue signs or abrasions on the person of the complainant and it was stated by the complainant that feels pain in her body but Amir Begun (P.W.1) stated before the Court that she showed the dark-blue signs of her chest, back and thighs to the police as well as to Doctor. In this view of the matter the medical evidence does not support the ocular version.
23. There is another aspect of the case that the recovery evidence was not specifically put to the accused in their statements under section 342, Cr.P.C. And it was asked that the prosecution has produced F .1. R . Exh. P.A. , site-plan Exh. P.G. And P.G.1, the injury form Exh. P.CC., clothing of complainant Exhs. P.B. And P.C., recovery memo. Of knife Exh. P.D. And recovery memo. Exh. P.E., how do they explain it. The learned counsel for the appellant seriously criticized this type of question and argued that a specific question should have been put to the accused as to whether the articles of recovery were recovered from the accused or not. According to him, the recovery evidence has lost its importance and no reliance can be placed upon this evidence. I have considered the explanation sought by the accused person in their statements under section 342, Cr.P.C. And arrived at the conclusion that the trial Court did not specifically suggest the circumstances of recovery to the accused and their explanation was not obtained. Therefore, recovery evidence cannot be used against the appellants-accused because law requires that any circumstance appearing in the evidence .Must be put to the accused before it is used against him.
Sheral alias Sher Muhammad v.' The State (1999 SCM R 697).
24. The prosecution did not produce Mst. Deewan Begum (P.W.4), sole independent witness of the case but was produced in defence. She stated that an altercation took place with Amir Begum and the string of her 'Shalwar' was not cut by the accused and the accused were also not armed with dagger and pistols. She falsified the presence of Raja Muhammad Waqas (P.W.2) and Mst.
Maqsood Begum (P.W.3) on the site of occurrence. It was wrongly recorded by the trial Court that Mst. Amir Begum (P.W.1) has supported the prosecution. The careful perusal of the statement of Mst. Deewan Begum (D.W.1) reveals that she has supported the version of defence instead of the prosecution story.
'
25. After making an analysis and dissection of the prosecution evidence as well as defence version it has become abundantly clear that all the eye-witnesses are close relations inter se, and they had an enmity to falsely implicate the appellants on account of not getting permission of way from the courtyard of the sister of the accused. The prosecution has not produced a single witness, other than the family members who could prove the occurrence. None of the neighbour or other persons of locality has been produced by the prosecution to substantiate the charge under section 354-A, A.P.C. And 15, I.P.L. The place of occurrence is concocted and the presence of P.Ws. Is not proved. Material illegalities, infirmities, improvements and contradictions are found in the statement of the complainant and the eye-witnesses. They do not corroborate each other on the main points of the prosecution story. False inclusion of Fazarat-accused to have a pistol with him and to press it upon the temple of Muhammad Waqas (P.W.2) and later on non-recovery of pistol from him also falsifies the case of the prosecution. The recovery evidence is tainted with animus and the recovery witnesses are also closely related to the complainant and their evidence is full of inherent defects throwing thick clouds of suspicion on truthfulness of prosecution case. Recovery of knife, pistols, shirt and Shalwar not found to have any legal worth. Medical evidence also does not support the prosecution Case, furthermore the prosecution witnesses are highly interested and inimical towards t' accused party who have falsely implicated them in an heinous offence, therefore, it will not be safe to keep reliance on such evidence. When the prosecution evidence and defence version are taken into a juxtaposition and appraised in its true perspective the prosecution tale seems to be improbable and fabricated, which was concocted and manufactured after preliminary inquiry, consultation and deliberations. Therefore, not only ocular version is not reliable but no corroboration is present in the instant case. Thus, conviction cannot be recorded on such evidence. In this respect reference can be made to a case reported as Wasiullah v. Mirza Ali and others (PLD 1963 SC 25), Mr. Justice Fazle-Akbar, J. (as he then was) while dealing with the testimony of interested witnesses observed in the report at page No,29 in the following manner:-- "On further examination, it appears that the case is not free from doubts of a general character.
These are caused by (1) the false inclusion of the name of Hussan Ali at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged 'crime empties' and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges, both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons i,e,, enemies of the persons charged, it is proper to ask that the evidence in Corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt."
26. I have taken note of the fact that the appellants Pervaiz and Basharat are behind the bars for the last three years and appellant Fazarat remained in judicial lock-up for about two years. If at all any altercation took place between the parties the period of detention of the appellants is sufficient to meet the ends of justice.
' In the light of what has been listed above, the trial Court acted illegally to place reliance on the prosecution evidence while passing an order of conviction against the appellants-accused. In my view the prosecution has miserably failed to prove their guilt beyond any reasonable shadow of doubt. Therefore, the appellants are not found guilty of the offences mentioned above. Resultantly, the appeal filed by Parvaiz Akhtar and other appellants-accused is allowed, the conviction and sentence of the appellants-accused is set aside. The appellants Pervaiz Akhtar and Basharat Khan shall be released forthwith if not required in any other case. Consequently, the appeal filed by Mst.
Amir Begum, complainant fails which stands dismissed.